Naturally Splendid Enterprises Ltd (CVE:NSP) (OTCPINK:NSPDF) (FRA:50N), a supplier of vegetarian meat substitutes, sports and energy bars, and hemp-based products, has appealed the Federal Court of Canada’s decision to reject its trademark application to register NATERA.
The decision does not affect Naturally Splendid’s right to continue using its long-established NATERA mark in the Canadian marketplace, the company said. Nonetheless, the company is appealing a case that began back in 2013.
Naturally Splendid's Canadian Trademark Application No. 1,635,350 was filed in July 2013, covering a variety of food products. After winding its way through the Canadian Intellectual Property Office, the application was opposed by Brandstorm Inc in June 2015, which alleged it had used the mark NATIERRA for goji berries, salt, cocoa powder and trail mix in Canada prior to 2013.
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Then, in August 2018, the Canadian Trademark Opposition Board dismissed Brandstorm's opposition, which would have allowed Naturally Splendid's trademark application to proceed, except that Brandstorm opted to appeal to the Federal Court.
Brandstorm submitted new evidence, and on January 22, 2021, the Court noted that Brandstorm's affiant had not been cross-examined and accepted Brandstorm's claims of previous use of NATIERRA in Canada. The Canadian Intellectual Property Office then rejected Naturally Splendid's trademark application.
However, Naturally Splendid noted that the Federal Court decision did not take into account the co-existence in Canada of third-party trademarks that are based on the word "nature.” No such evidence was before the Opposition Board or the Federal Court and it will also not be before the Federal Court of Appeal.
One of the grounds of Naturally Splendid’s appeal filed is that the Court erred in how it considered the specific foods in question. The Court essentially ruled that because they might all be sold in grocery stores, NATERA used on products such as hemp seeds, beverages and pet food could be confused with NATIERRA found on goji berries, Himalayan salt, cocoa powder and trail mix. That issue is anticipated to be a focal point of the appeal, the company said.
"Even though this decision does not affect our right to continue using the NATERA mark and to further enhance the brand, we still value the additional protection of a Canadian trademark registration,” CEO Craig Goodwin said in a statement. “We believe we have a strong case for appeal and are currently proceeding with our application to appeal."
The appeal is in its early stages, and a decision is not expected for several months, the company said.
Contact Andrew Kessel at andrew.kessel@proactiveinvestors.com
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