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Trademark appeal allowed and application refused due to likelihood of confusion based on new evidence.
The applicant appealed a decision by the Registrar of Trademarks finding no likelihood of confusion between the respondent's trademark application for FUNDAWEAR and the applicant's registered trademark UNDERWEAR THAT'S FUN TO WEAR.
On appeal, the applicant submitted new evidence of sales and promotional expenses that remedied deficiencies in the original record.
The Federal Court found this new evidence material, triggering a de novo review, and held that there was a likelihood of confusion between the two marks.
The appeal was allowed and the Registrar was directed to refuse the respondent's trademark application.
