July 28, 2021
The King is dead. Long live the King.
A federal judge has finally settled a 10-year legal dispute under the Trademark’s Act about which Canadian barbecue product is the “King.”
“Although the parties’ respective goods are not identical, the likelihood of confusion may be heightened where the goods in issue are of such a nature that they are often used together,” wrote Justice Janet Fuhrer, of the Federal Court.
Fuhrer upheld the trademark of Kingsford Products Company of Oakland, California, owner of “Kingsford” brand briquettes first trademarked in Canada in 1953. The company was founded by timber baron Edward Kingsford of Woodstock, Ont.
Kingsford lawyers objected to “king” brand barbecue lighters sold at Walmart by Tokai of Canada Ltd. of Markham, Ont. Under federal law, competitors cannot register similar brand names for similar products likely to confuse “a casual consumer somewhat in a hurry,” wrote Fuhrer.
“Tokai’s goods, barbecue and fireplace lighters, are closely related to Kingsford’s products being charcoal, charcoal lighters, grills, charcoal briquettes and various other products ancillary or related to barbecuing or grilling,” wrote Fuhrer.
“Although the parties’ respective goods are not identical, the likelihood of confusion may be heightened where the goods in issue are of such a nature they are often used together.”
Lawyers for Tokai argued in Federal Court that numerous other “kings” were trademarked without objection including junior hockey’s Brandon Wheat Kings, first registered in 1947.
Fuhrer counted nine “king” trademarks but ruled them irrelevant.
“The probability of confusion between ‘king’ and ‘Kingsford’ is evenly balanced between a finding of confusion and no confusion,” wrote the Court.
“This means that because the onus was on Tokai to establish no likelihood of confusion on a balance of probabilities, the issue must be decided against Tokai.”
The typical Canadian homeowner uses their barbecue twice weekly in summer months, according to polling data by Ipsos Public Affairs. Researchers found 37% of Canadians identified anything barbecued as their favourite summer food.