You’re (FAST) FIRED! Federal Court Serves Up A Win For Blaze Pizza In Trademark Opposition

On November 6, 2024, in Blaze Pizza, LLC v Carbone Restaurant Group Ltd., 2024 FC 1770, the Federal Court of Canada (FC) allowed an appeal from a decision of the Trademarks Opposition Board (TMOB), allowing Blaze Pizza’s opposition to the trademark FAST FIRED BY CARBONE & Design (the Trademark).

Blaze Pizza opposed the application for the Trademark on the basis of confusion with its FAST FIRE’D BLAZE PIZZA & Design mark and variations.  The TMOB rejected Blaze Pizza's opposition to Carbone's trademark application, finding insufficient evidence of Blaze Pizza's use of its marks in Canada and no likelihood of confusion between the marks.

On appeal, Blaze Pizza filed new evidence which the FC held to be material because it addressed a specific gap identified by the TMOB, namely, the extent to which pizza boxes displaying the marks were distributed in Canada.  Thus, the FC conducted a de novo review of certain factors of the confusion analysis where the evidence regarding the pizza boxes was held to be material.  Carbone did not participate in the appeal.

The FC concluded that, based on the new evidence, the likelihood of confusion weighed in favour of Blaze Pizza.  The FC also determined that Blaze Pizza’s new evidence established that the variation of the Blaze Pizza trademark displayed on pizza boxes, as well as the stand alone trademark FAST FIRE’D, “have sufficient, if not significant reputation”, to displace any distinctiveness of Carbone’s Trademark. Thus, the FC held that the new evidence satisfied Blaze Pizza’s evidential burden, and the onus shifted to Carbone to show that its Trademark is not confusing and is distinctive, and Carbone failed to satisfy this burden given that it did not participate in the appeal.

The FC set aside the TMOB decision, refused registration of the Trademark, and awarded Blaze Pizza $15,000 in costs.

Summary By: Michelle Noonan