Jon L. Purther

Tokai of Canada Ltd appealed two decisions of the Trademarks Opposition Board refusing its applications to register the trademark KING for lighters due to a likelihood of confusion with Kingsford's registered trademarks for charcoal and barbecue-related goods.

On appeal, Tokai introduced new survey evidence and third-party registrations.

The Court held the survey evidence was inadmissible due to methodological flaws that failed to simulate the imperfect recollection of a casual consumer.

Finding the new evidence immaterial or inadmissible, the Court applied a deferential standard of review and concluded the Registrar made no palpable and overriding error in finding a likelihood of confusion.

The appeals were dismissed with costs.