Biosteel Inc. v. Cizzle Brands Ltd., 2024 ONSC 5515
2024-10-18
Read full decision. Summary prepared by Alan Macek:
The Plaintiffs allege that the Defendants have been operating their brand and product known as CWENCH Hydration in a manner that passes off on the goodwill of the Plaintiffs’ brand and product, BioSteel. ... They seek an interlocutory injunction against the Defendants based on the tort of passing off. ... I find that the Plaintiffs have not stablished a strong prima facie case that there is goodwill or reputation attached to the get-ups of their goods. ... I acknowledge the duplication or near-duplication in flavour names, but I am not persuaded that it constitutes misrepresentation. ... In my view, the record supports that Cwench’s use of Tetra Pak is a functional and utilitarian choice, not an effort to mimic BioSteel’s packaging. ... The Plaintiffs’ evidence on consumer confusion consists largely of comments posted on social media by unnamed individuals about the apparent similarities between BioSteel and Cwench products. This evidence is hearsay and in my view inadmissible. ... There is no evidence before me to support the claim that BioSteel is particularly vulnerable as a result of the CCAA proceedings. Even if it is vulnerable, however, this would not support a finding of irreparable harm given my conclusion that the Plaintiffs have not demonstrated a strong prima facie case or a serious issue to be tried. ... Accordingly, I do not grant the injunction. (Thanks to Ben Pearson for a copy of this decision)