Survey evidence can be powerful support in a Canadian trademark confusion dispute, but only if it is designed and conducted in a way that withstands scrutiny. Promotion in Motion Inc. v. Hershey Chocolate & Confectionery LLC, 2024 FC 556, is a reminder of how much technical rigour that actually requires.
SWISSKISS Meets KISSES
Promotion in Motion sought to register SWISSKISS trademarks for chocolate products. Hershey opposed, arguing the marks were confusing with its well-known KISSES and KISS trademarks. The Trademarks Opposition Board agreed with Hershey and refused the applications; Promotion in Motion appealed to the Federal Court, filing new survey evidence intended to show consumers were not, in fact, likely to be confused.
Two Online Surveys, Two Sets of Problems
Promotion in Motion's evidence consisted of two internet-based surveys of self-identified Swiss chocolate purchasers, comparing reactions to the SWISSKISS design against a modified control version. The Federal Court found the surveys suffered from real reliability and validity problems: repeated use of the phrase "Swiss chocolate" throughout the questionnaire created a priming bias that likely skewed responses toward the applicant's desired result, and the online survey format let participants use the browser's back button, meaning the experts who designed the surveys could not rule out participants clicking back and forth between the test and control images before answering.
Why the Court Excluded the Evidence Entirely
Rather than simply discounting the surveys' weight, the Federal Court held they failed the threshold reliability and validity criteria for admissibility altogether, meaning the evidence never entered the confusion analysis at all. With that evidence out, the Court upheld the Board's original finding that SWISSKISS was confusing with Hershey's KISSES and KISS marks, and the opposition succeeded.
A Lesson in Evidentiary Rigour, Not Just Brand Strength
For a small or medium-sized Canadian business defending or challenging a trademark application, the case is a useful, relatable illustration that a confusion dispute is not decided on brand strength or marketing intuition alone; the evidentiary rigour behind a survey, or any other technical evidence, can decide the case before the substantive confusion argument is even reached. Commissioning consumer survey evidence without qualified methodological design is a real risk, not a formality, and a flawed survey can be worse than no survey at all.
We work with qualified survey experts when consumer evidence is genuinely warranted in a Canadian trademark dispute, and we advise clients on when that expense is likely to be worth it, and when it is not.