Claimant Wins Passing Off Case Against Respondents Over Multicultural Events Trademark

OUTCOME: Allowed

Date: 20260414 Docket: T-1346-21 Citation: 2026 FC 495 Vancouver, British Columbia, April 14, 2026 PRESENT: The Honourable Mr. Justice Manson BETWEEN: [COMPANY_1] Plaintiff and [COMPANY_4]., [COMPANY_5], AND [COMPANY_6]

JUDGMENT AND

REASONS I. Introduction [ 1 ] This action and counterclaim involve competing claims to the trademark and trade name [NAME_3] and related variants used in association with Asian food and cultural events and restaurant-promotion programming in the [NAME_2] ([NAME_2]). The [COMPANY_1] ([NAME_7]) pleads passing off under paragraphs 7(b) and 7(c) of the Trademarks Act , RSC 1985, c T-13, s 7, and at common law against the [COMPANY_5] ([NAME_8]), [COMPANY_4]. ([COMPANY_3]), and the [COMPANY_6] ([NAME_9]). The Defendants deny liability, and [COMPANY_3] and [NAME_8] counterclaim and allege that [NAME_7]’s use of [NAME_3] constitutes passing off against them. [ 2 ] [NAME_7]’s trademark registrations are not in issue and accordingly nor are the issues of possible remedies under sections 19 or 20 of the Trademarks Act . [ 3 ] For reasons that follow, [NAME_7] succeeds in part. [NAME_7] has established passing off under paragraph 7(b) of the Trademarks Act against the Defendants in relation to [NAME_9] and [NAME_8]’s commencement of public use of [NAME_3] in February 2020 and subsequent alleged related uses and [COMPANY_3]’ use of [NAME_3] as a trade name, although [NAME_7] has not established a case under paragraph 7(c) of the Trademarks Act on the evidentiary record before me. The counterclaim by [NAME_8] and [COMPANY_3] is dismissed because they have not proved that [NAME_3] had become used as a trademark or had acquired any distinctiveness with respect to their services before [NAME_7] began using [NAME_3].

II. Background [ 4 ] [NAME_7] is a not-for-profit corporation incorporated in Ontario on June 3, 2019. [NAME_10] is its current President. The evidence shows that [NAME_7] was created in connection with the organization of a recurring Asian food and cultural event in Scarborough that began in 2019. [ 5 ] [NAME_8] is a not-for-profit corporation incorporated in Ontario on May 22, 1992. [NAME_12] is its chairman and a director. [NAME_8] has operated food-related programming for many years, including the Taste of Asia events. [ 6 ] [COMPANY_3] is an Ontario corporation incorporated in Ontario on February 5, 2020. [NAME_12] is its director and the only person materially connected to it on this record. [ 7 ] [NAME_9] is a federally incorporated corporation established in November 2016. [NAME_9] is its founder and president. [NAME_9] worked with [NAME_8] in relation to the February 2020 [NAME_3] and later alleged restaurant-promotion activities. [ 8 ] [NAME_15] (also known as [NAME_16]) was a director and officer of [NAME_7]. [NAME_16] provided various services, including grant-writing services to [NAME_7] for payment. Both have also volunteered with [NAME_8], and [NAME_16] has worked for [NAME_8] in the past. [ 9 ] A timeline of key events follows: (a) August 2019: [NAME_7] held the [NAME_3] event at [ADDRESS] in Scarborough, Ontario; (b) February 2020: [NAME_9] and [NAME_8] held the [NAME_3] event; (c) February 10, 2020: [COMPANY_3] filed a Canadian trademark application for [NAME_3] (No. 2,013,685); (d) February 13, 2020: [NAME_15] filed two Canadian trademark applications for [NAME_3] (No. 2,011,324 and No. 2,358,105); (e) March 30, 2020: [NAME_7] issued a cheque to pay the invoice [NAME_16] submitted related to Canadian trademark applications No. 2,011,324 and No. 2,358,105; (f) September 2020: [NAME_7] held the [NAME_3] TM TO event; (g) on or about April 6, 2021 (recorded May 18, 2021): [NAME_15] assigned application No. 2,011,324 to [NAME_7]; (h) March 24, 2024: [COMPANY_3]’ Canadian trademark application for [NAME_3] (No. 2,013,685) was abandoned; (i) December 12, 2025: [NAME_7]’s Canadian trademark application ( “TMA” ) for [NAME_3] (No. 2,011,324) was registered (TMA 1,366,402); (j) February 17, 2026: [NAME_7]’s Canadian trademark application for [NAME_3] (No. 2,358,105) was registered (TMA 1,292,236); and (k) in each of the years 2021 to 2025: [NAME_7] has held [NAME_3] events. [ 10 ] While not before the Court in this action, [NAME_7]’s [NAME_3] trademark registrations cover the following: (a) TMA 1,366,402: TRADEMARK DETAILS/ DÉTAILSDE LA MARQUE DE [NAME_3]/ TYPE DE MARQUE DE COMMERCE Standard Characters SERVICES: 35 (1) Promotional services relating to events and programs showcasing the diversity of Canadian cuisine; promoting food and dining experiences and encouraging public patronage of local restaurants. 41 (2) Organization of series of festivals and events across Canada annually to promote food, restaurants, the hospitality industry, food culture, culinary artisans, chefs, cooking competitions and competitive eating; organization of culinary events for cultural purposes, specifically showcasing the diversity of Canadian cuisine. (b) TMA 1,292,236: TRADEMARK DETAILS/ DÉTAILSDE LA MARQUE DE [NAME_3]/ TYPE DE MARQUE DE COMMERCE Standard Characters SERVICES: 41 providing multicultural entertainment exhibitions namely dancing, singing and musical performances. [ 11 ] The Defendants have not commenced expungement proceedings nor challenged the validity of either of [NAME_7]’s [NAME_3] trademark registrations. [ 12 ] In their counterclaim, [COMPANY_3] and [NAME_8] have raised breach of confidence, breach of fiduciary duty, and misappropriation of a business concept, which are not appropriately before this Court.

III. Issues [ 13 ] The issues are: As of the relevant times, did [NAME_3] (or a relied-upon materially similar variant) have goodwill and distinctiveness in the relevant market(s), such that it indicated the source of the services of [NAME_7] or of [NAME_8]/[COMPANY_3]? If there was contemporaneous use of [NAME_3] in the same market, what is the effect on distinctiveness? Did any Defendant ([NAME_8], [COMPANY_3], [NAME_9]) direct public attention to its services in such a way as to cause or be likely to cause confusion in Canada, at the time it commenced doing so, between its services and [NAME_7]’s services, that caused actual or potential damage attributable to the misrepresentation/confusion, contrary to paragraph 7(b) and/or paragraph 7(c) of the Trademarks Act ? [NAME_7] direct public attention to its services in such a way as to cause or be likely to cause confusion in Canada, at the time [NAME_7] commenced doing so, between its services and the services of [NAME_8]/[COMPANY_3], that caused actual or potential damage attributable to the misrepresentation/confusion, contrary to paragraph 7(b) and/or paragraph 7(c) of the Trademarks Act ? If liability is established, what remedies are appropriate? IV. Fact Witnesses A. Plaintiff’s Fact Witnesses (1) [NAME_10] [ 14 ] [NAME_10] is the founder and President of [NAME_7]. She led the organization of [NAME_7]’s 2019 [NAME_3] and 2020 [NAME_3] TM TO programming. She was the central witness on [NAME_7]’s adoption of the [NAME_3] name, the organization and promotion of the 2019 event, the later [NAME_3] TM TO restaurant-promotion initiative, and [NAME_7]’s understanding that the trademark filings arranged through [NAME_16] were made on [NAME_7]’s behalf. [ 15 ] [NAME_10] testified that [NAME_19] asked her to help create an annual community event in Scarborough and that [NAME_7] was created to host that event. [NAME_10] testified that [NAME_19] suggested the [NAME_3] name in early 2019, based on the Summerlicious and Winterlicious events that take place in [NAME_2], during initial discussions about the event. [NAME_10] described a 2019 press conference that [NAME_7] hosted, the media attendance, the use of banners and posters, the program book, the advertising campaign, and the attendance-counting process for the August 2019 [NAME_3]. She also testified that she later asked [NAME_16] to arrange a trademark filing for [NAME_7] and paid the invoice she received for that service. [ 16 ] [NAME_10] further testified that, in early 2020, someone asked her whether she was running an event called [NAME_3] in February 2020, and that someone later sent her promotional material for that event and asked whether it was her event. [NAME_10] testified that she also saw negative social media commentary related to [NAME_9] and [NAME_8]’s 2020 [NAME_3] event before [NAME_7]’s 2020 [NAME_3] activities took place that year. [NAME_10] cited no documentary evidence for her confusion points. However, on the core matters of [NAME_7]’s adoption and use of the [NAME_3] trademark, her evidence was coherent and matched the documents that are in the record. [ 17 ] On cross examination, [NAME_10] was credible and her evidence was consistent with her evidence-in-chief. (2) [NAME_14] [ 18 ] [NAME_14] is a director of [NAME_7] and has been involved with [NAME_7] from the beginning of the organization. His evidence addressed the execution and marketing of [NAME_7]’s [NAME_3] activities from 2019 onward, including [NAME_7]’s [NAME_3] beginning in 2019 and [NAME_7]’s [NAME_3] TM TO restaurant program beginning in 2020. [ 19 ] [NAME_14] testified that he was closely involved in marketing [NAME_7]’s [NAME_3] and [NAME_3] TM TO events. He identified billboard advertising, including in [ADDRESS], for [NAME_3] TM TO 2020, social media banners, restaurant window decals, website screenshots, and later marketing reports. He explained that [NAME_3] TM TO was a fixed-menu restaurant event running from 2020 until about two years before the trial hearings, while [NAME_3] continues as [NAME_7]’s annual carnival event. He also testified that the [NAME_3] name was developed with input from [NAME_19], that it was used throughout the 2019 [NAME_3], and that the 2019 event was well attended. [NAME_14] testified that, later in 2020, [NAME_7] had to clarify on the [NAME_23] online forum that a criticized percentage-discount [NAME_3] event was not [NAME_7]’s [NAME_3] event, but was [NAME_9] and [NAME_8]’s [NAME_3] event. [ 20 ] Some of the marketing reports [NAME_14] identified were from 2021, 2023, 2024, and 2025 and therefore did not establish recognition of [NAME_7]’s use of [NAME_3] prior to February 2020. Still, [NAME_14]’s evidence was useful on [NAME_7]’s 2019 and 2020 [NAME_3] activities, the nature of [NAME_7]’s services, the prominence of the [NAME_3] brand, and the manner in which consumers encountered it. [ 21 ] [NAME_14] was a credible witness and on cross-examination his evidence was consistent with his evidence-in-chief. (3) [NAME_16] [ 22 ] [NAME_16] is a former director and former corporate secretary of [NAME_7]. She was involved with [NAME_7] when the relevant events occurred, and she is also [NAME_16]’s spouse. Her evidence focussed on the administrative steps taken for [NAME_7]’s incorporation, [NAME_7]’s trademark filings, and her continued involvement with [NAME_7]’s [NAME_3] activities through 2025. [ 23 ] [NAME_16] testified that [NAME_10] asked her to incorporate [NAME_7] and to complete administrative tasks relating to [NAME_7]’s 2019 [NAME_3] event. She testified that [NAME_10] told her that [NAME_19] came up with the name [NAME_3]. [NAME_16] further testified that in 2020, [NAME_10] instructed her to file trademark applications for [NAME_3], that [NAME_16] helped her use an online filing service called [COMPANY_24] to do the filing, and that [NAME_7] paid the invoice she submitted for the filing services. [NAME_16] explained that, when she later realized that the trademark applications had been filed in her own name rather than [NAME_7]’s name, she signed a trademark assignment of each of the applications to [NAME_7] without dispute because it had always been her intention that [NAME_7] own the trademark applications. [NAME_16]’s testimony was consistent with [NAME_10]’s evidence and with the payment-and-assignment sequence shown in the documents in evidence. [ 24 ] On cross-examination, [NAME_16] testified that [NAME_7] was created for the purpose of creating an event in Scarborough to connect Asians and promote Asian culture. [NAME_16] was a credible witness and on cross-examination her evidence was consistent with her evidence-in-chief. (4) [NAME_16] [ 25 ] [NAME_16] is a professional fundraiser, festival consultant, and grant writer, particularly for not-for-profit organizations. He previously worked with [NAME_8], later provided services to [NAME_7], and invoiced through a company he owns with [NAME_16]. [ 26 ] [NAME_16] testified that he was introduced to [NAME_8] around 2004, became a director of [NAME_8] until he resigned in 2009, and then provided services for various [NAME_8] activities, including Taste of Asia, until about 2018. He also testified that he helped with [NAME_7]’s incorporation and [NAME_16]’s [NAME_3] trademark filings, that he had never before filed a trademark application using the [COMPANY_24] online platform, and that he entered [NAME_16]’s name for the trademark applications because she was the person acting for [NAME_7]. He testified that [NAME_7] paid the invoice for those trademark filing services. [ 27 ] The evidence at trial included a text message exchange between [NAME_16] and [NAME_12], [NAME_12]’s late wife and a senior figure within [NAME_8], in which [NAME_16] communicated that [NAME_19] had approached him about organizing a festival at [ADDRESS] in 2019. [ 28 ] [NAME_16] also testified that [NAME_12] was his family doctor until about 2021 and that he invited [NAME_12] to his events, including probably [NAME_7]’s 2020 [NAME_3] event. [ 29 ] While the Defendants asserted that [NAME_16]’s earlier association with [NAME_8] meant that he must have known that [NAME_8] already owned the [NAME_3] trademark or concept, [NAME_16] testified that he had not heard of [NAME_8] using [NAME_3] while he worked there. On cross-examination, [NAME_12] was unable to say that [NAME_16] was untruthful when [NAME_16] said he had not heard of [NAME_8] using [NAME_3] while he worked there. [ 30 ] [NAME_16] was a credible witness and his evidence on cross-examination was consistent with his evidence-in-chief. B. Defendants’ [NAME_7] Witnesses (1) [NAME_12] [ 31 ] [NAME_12] is the chairman of [NAME_8], he oversees its projects, and is the sole person involved with [COMPANY_3]. His evidence addressed [NAME_8]’s asserted earlier use of [NAME_3], [NAME_9] and [NAME_8]’s February 2020 [NAME_3], his understanding of [NAME_16]’s past role, and later alleged [NAME_9] activities related to [NAME_3]. [ 32 ] [NAME_12] testified that he first used the [NAME_3] name somewhere between 2013 and 2015 in discussions with other [NAME_8] members, and that a team led by [NAME_25] was developing a restaurant discount-card concept around 2014 or 2015. He testified that [NAME_8] used the [NAME_3] name on discount cards, and that tens of thousands of discount cards were produced and distributed at the Taste of Asia event, the [NAME_8], Market Village, and [ADDRESS]. He also testified that, after February 26, 2015 emails referring to “[NAME_26]” (with an “n” ), a “[NAME_8]/Taste of Asia Card” , and “[NAME_8] cards” , there was an internal [NAME_8] decision to use [NAME_3]. [ 33 ] The difficulty is that [NAME_12] did not produce any actual card, photograph, copy, or other document with respect to those asserted discount cards. He did not know whether the February 26, 2015 email referring to a “[NAME_8]/Taste of Asia Card” had an attachment, though the email itself states “Please see draft for [NAME_8]/Taste of Asia Card” . [NAME_12] was unsure which years the alleged discount cards were distributed. He repeatedly testified that staff or volunteers did the actual work and that he oversaw rather than directly handled these matters. He was also unable to be precise about [NAME_16]’s status and role with [NAME_8] at different times. [ 34 ] [NAME_12] did give clear evidence that [NAME_8] and [NAME_9] publicly ran the February 2020 [NAME_3] and that a related media event was held in early February 2020 at the Markham Civic Centre, which was attended by Markham’s Mayor, counsillors, and restaurant owners. On that narrow point, his evidence was generally consistent with [NAME_9]’s. However, on the critical issue of the Defendants’ pre-August 2019 public use and public recognition of [NAME_3], his evidence was imprecise and unsupported by documents. [NAME_12] also testified that [NAME_9] later had booths at Taste of Asia events in 2022 to 2025 and distributed discount cards or promoted restaurant members under [NAME_3], again with no credible evidence of such use. [ 35 ] [NAME_12]’s credibility is eroded by: (a) his inability to be precise about the dates or even years in which many specific actions or events took place; (b) his apparent limited knowledge of what staff and volunteers directly did; and (c) his lack of certainty about who held particular roles at particular times. [ 36 ] [NAME_12]’s evidence is particularly weak on the proposition that [NAME_16] knew about a [NAME_8] [NAME_3] program between 2013 and 2015. I am not persuaded that [NAME_12] had a reliable basis to speak to what [NAME_16] knew. Indeed, on cross-examination, [NAME_12] testified that [NAME_16] would know better than he would about [NAME_16]’s role when acting as director or manager of [NAME_8]. [ 37 ] [NAME_12] testified that [NAME_16] invited him to [NAME_7]’s inaugural [NAME_3] in August 2019 as well as in 2020, and that [NAME_12] visited [NAME_7]’s [NAME_3] event in 2020. [ 38 ] [NAME_12] was a credible witness with respect to [NAME_8]’s longstanding Taste of Asia events and the occurrence of the February 2020 [NAME_3], but his evidence about [NAME_8]’s alleged earlier [NAME_3] use was at best highly questionable and of limited value. [ 39 ] [NAME_12] confirmed under cross-examination that he was not aware of the abandonment of [COMPANY_3]’ [NAME_3] trademark application until January 2026 and that, until the day he testified at trial, he was unaware that [NAME_7] held registered [NAME_3] trademarks. (2) [NAME_9] [ 40 ] [NAME_9] is the founder and president of [NAME_9]. [NAME_9] testified that [NAME_9] has over 2,000 restaurant and hospitality members. She has volunteered with [NAME_8]’s Taste of Asia activities for many years and worked with [NAME_8] on the February 2020 [NAME_3]. [ 41 ] [NAME_9] testified that she had heard the name [NAME_3] “a long time ago” with [NAME_8] and that small events existed before 2019. However, on cross-examination she testified that before 2019 she had only heard [NAME_8] members talking about the name. She also said that the [NAME_3] name came from [NAME_8] board meetings, but then admitted on cross-examination that she was not on the [NAME_8] board and did not attend [NAME_8] board meetings. She testified that she heard the [NAME_3] name from [NAME_12] and [NAME_16], though she was unsure whether [NAME_16] was a board member or a hired worker. [ 42 ] [NAME_9] testified that [NAME_9] used [NAME_3] for the February 2020 [NAME_3], and that [NAME_9] later produced hard-copy [NAME_3] coupon books in 2021 and 2022, promoted them through social media and at Taste of Asia events, and later continued to mention [NAME_3] publicly at Taste of Asia events in 2023 and 2024. However, she did not produce copies of those coupon books, and she acknowledged that she had not given them to counsel. Additionally, her evidence about 2022 statistics related to an asserted 2022 Taste of [NAME_3] event was internally inconsistent. [ 43 ] [NAME_9]’s conflicting testimony reduces her credibility. I do not accept her evidence as reliable proof of pre-August 2019 public recognition of [NAME_3] or use by [NAME_8]. An alleged trademark without use is non-existent.

V. Analysis of [NAME_7]’s [NAME_8]/[COMPANY_3]’ Counterclaim A. Principles of Passing Off [ 44 ] The foundation of any valid trademark is that it must be distinctive of a single traders’ goods or services. If there is contemporaneous use, then it may erode that distinctiveness. [ 45 ] Passing off exists at common law and is codified in paragraph 7(b) of the Trademarks Act , which prohibits a party from directing public attention to their goods, services, or business “in such a way as to cause or be likely to cause confusion in Canada” , at the time they commenced doing so, between their business and another’s. The first elements of inquiry the Court must make is whether the plaintiff has goodwill in a distinctive trademark and whether the defendant’s conduct amounts to a misrepresentation likely to cause confusion as to source ( Kirkbi AG v [COMPANY_27] , 2005 SCC 65 [ Kirkbi ] at paras 39, 66-68). A plaintiff must prove ownership of a valid and enforceable trademark, whether registered or unregistered ( [COMPANY_28] v [COMPANY_29] , 2007 FCA 255 at para 14). [ 46 ] Paragraph 7(c) of the Trademarks Act prohibits passing off “other goods or services as and for those ordered or requested” . The absence of trading activity is fatal to a 7(c) claim, as there must be trade involving trademarks for there to be a violation of paragraph 7(c) of the Trademarks Act ( Positive Attitude Safety System Inc. v Albian Sands Energy Inc. (FCA), 2005 FCA 332 at para 34; MacDonald et al v [COMPANY_30]. , 1976 CanLII 181 (SCC), [1977] 2 SCR 134 at 152-153). Paragraph 7(b) of the Trademarks Act has an express timing element, confusion being assessed at the time the alleged infringer commenced directing attention in their goods and/or services in such a way as to cause confusion. Paragraph 7(c) of the Trademarks Act does not have the same statutory timing language as paragraph 7(b) because 7(c) is tied to substitution events. [ 47 ] As the Supreme Court affirmed in Kirkbi , for a passing off action to succeed, a plaintiff must meet the three prongs of the test set out by the Supreme Court of Canada in [COMPANY_31] v [COMPANY_32] , 1992 CanLII 33 (SCC), [1992] 3 SCR 120 [ Ciba-Geigy ]: (a) there must be reputation or goodwill established in the trademark as used with the goods or services; (b) there must be a deception of the public due to a misrepresentation; and (c) there must be actual or potential damage to the trademark owner. [ 48 ] In assessing whether a plaintiff has established goodwill and whether a defendant’s conduct is likely to deceive, the Court considers the perspective of the relevant consumers, including both direct and indirect consumers ( Ciba-Geigy ). However, a trademark can have its distinctiveness negated by another party’s contemporaneous use in the Canadian marketplace, and an allegation of passing off does not preclude a party from relying on the alleged infringing use to challenge distinctiveness ( [COMPANY_34] v [COMPANY_35] ., 2019 FCA 10 [ [NAME_36] ] at para 15). B. Established Reputation or Goodwill, Distinctiveness, and Priority [ 49 ] [ADDRESS] must first determine if the [NAME_3] trademark is distinctive of one of the parties as being the source of the services provided. To do that, the first task is to identify the relevant services and market. The record shows three centrally relevant public events or programs: (a) [NAME_7]’s August 2019 [NAME_3] in Scarborough; (b) [NAME_9]/[NAME_8]’s February 2020 [NAME_3] based in Markham, promoted across the [NAME_2], and featuring participating restaurants across the [NAME_2]; and (c) [NAME_7]’s September 2020 [NAME_3] TM TO restaurant promotion program with participating restaurants across the [NAME_2] and subsequent continued use of [NAME_3] with its Carnival from 2021 to 2025 and with [NAME_3] TM TO up until two years ago. [ 50 ] The events and services are not identical in every detail, but they are very closely related. Each parties’ use of [NAME_3] involved Asian food promotion, event programming, public attendance or participation, restaurant or food vendor participation, sponsorship, and promotion in the [NAME_2]. [ 51 ] The relevant consumers were not limited to members of the public that attended or participated in the parties’ events; they also included participating restaurants, food vendors, sponsors, and suppliers. The relevant geographic market was the [NAME_2]. [NAME_7]’s 2019 event occurred in Scarborough, but evidence shows that it was promoted more broadly and drew media attention beyond Scarborough. [NAME_9] and [NAME_8]’s February 2020 [NAME_3] event was promoted primarily from Markham, but involved restaurants and media publicity extending to [NAME_2], Vaughan, Brampton, and other parts of the [NAME_2]. [NAME_7]’s 2020 [NAME_3] TM TO program was sponsored by the City of [NAME_2] and was operated and promoted in the [NAME_2]. There was significant consumer overlap. [ 52 ] [NAME_7] adopted the following [NAME_3]-based design mark, used with their [NAME_3] events starting in 2019: [ 53 ] [NAME_7] adopted the following [NAME_3]-based design mark, used with their [NAME_3] TM TO program starting in 2020: [ 54 ] [NAME_9]/[NAME_8] adopted the following [NAME_3]-based design mark, used with their 2020 [NAME_3] event: [ 55 ] The first question is whether, by February 2020, [NAME_3] had acquired source significance for [NAME_7] in the relevant market for the [NAME_3] for Asian food and cultural events and related promotion services. [ 56 ] On that question, [NAME_7] succeeds. [ 57 ] [NAME_7]’s public-facing use began with their promotion of their August 2019 [NAME_3]. [NAME_10] testified that [NAME_3] was used for [NAME_7]’s first 2019 event and that [NAME_7] held a press conference at the Congee Town in Scarborough before the event. She identified photographs showing media members with cameras, banners, posters, and repeated use of the [NAME_3] design mark together with the [NAME_7] design mark. She also testified that [NAME_7] engaged two marketing companies, [COMPANY_37]. and [COMPANY_38]. to promote the 2019 [NAME_3] event, and advertised on television, radio, and newspapers. [NAME_10] testified that 2,000 or 3,000 program books were printed and distributed at the event. [ 58 ] That evidence was corroborated in material respects. The record contains the media and government invitations identifying [NAME_7] as the 2019 [NAME_3] event organizer. It contains photographs of stage banners and other materials bearing the [NAME_3] design mark alongside the [NAME_7] design mark at the 2019 [NAME_3] and the related press conference. Additionally, [NAME_14] testified that the [NAME_3] name was used throughout the 2019 event and that the event was well attended. The photographs in the record show a substantial public event, not a small private gathering. [ 59 ] [NAME_10] testified that approximately 25,000 people attended the three-day 2019 [NAME_3] event, based on click counters and wristband distribution at the event. In his testimony, [NAME_14] could not confirm the exact number of attendees, but he supported the general proposition that attendance was substantial, that click counters were used, that wristbands were distributed to attendees, and that the crowds were dense during performances. While I do not treat the 25,000 figure as a precise number of attendees, I do accept that [NAME_7]’s 2019 [NAME_3] event drew significant public attendance and exposure. [ 60 ] [NAME_7] also proved that [NAME_3] was used as a trademark in association with the services [NAME_7] provided as early as 2019 and consistently thereafter. [NAME_3] was the dominant branding on banners, posters, program materials, and related promotions for the 2019 [NAME_3]. While it is not necessary for the relevant consuming public to know the sources of goods or services by name ( [COMPANY_39]. v [NAME_41] and [COMPANY_42]. , 2010 FC 27 at para 190, citing Ray Plastics Ltd. v Dustbane Products Ltd. (1994), 1994 CanLII 1241 (ON CA), 57 CPR (3d) 474 at   paragraph 5; [COMPANY_43]. v [COMPANY_44]. et al. , 1982 CanLII 45 (SCC), [1982] 1 SCR 494 at 503), [NAME_7]’s [NAME_3]-based design mark for its Carnival appeared together with [NAME_7]’s identifying design mark on invitations, posters, and banners, which linked the 2019 [NAME_3] event to [NAME_7] as the source and organizer of the Carnival. [ 61 ] By August 2019, [NAME_7]’s use of [NAME_3] as a trademark for its services associated with multicultural entertainment exhibitions and the organization of festivals to promote food, restaurants, the hospitality industry, and food culture, had occurred. The question is whether ordinary consumers in the relevant [NAME_2] market, encountering Asian food and cultural event services promoted under [NAME_3], would understand that trademark to indicate [NAME_7] as the single source. On this record, the answer is yes. [ 62 ] The Defendants argue that [NAME_8] had used [NAME_3] earlier and that [NAME_7]’s use of [NAME_3] therefore lacked distinctiveness or priority. I do not accept that position based on the evidence before the Court. [ 63 ] The evidence of alleged earlier [NAME_8] use of [NAME_3] before its 2020 [NAME_3] is, at best, suspect and not credible and certainly does not constitute use as a trademark. It consists mainly of [NAME_12]’s recollection that [NAME_3] discount cards were discussed and used somewhere between 2013 and 2015, and [NAME_8] internal emails from February 26, 2015 referring to “[NAME_26]” (with an “n” ), a “[NAME_8]/Taste of Asia Card” , and “reward card user sign up forms and [NAME_8] cards ( if can produce some )” . The emails are not enough. One states, “Please see draft for [NAME_8]/Taste of Asia Card” and “If we do not use [NAME_26], we can perhaps call it Taste of Asia on the road” . No attachment to that email showing the actual card that may have been used is in evidence. Another email states, “Please review this form to be used to recruit business to your community. We shall distribute this at the Huadu dinner event which may have some business owners attending” . The Defendants overstate what these emails show, including by asserting that they show promotion cards were printed in 2015 for the Huadu dinner. The emails show, at most, internal naming options under discussion. They do not prove that [NAME_3], as opposed to “[NAME_26]” or some other option was used publicly in the marketplace, or any use that would establish [NAME_8]’s rights to the trademark [NAME_3] prior to [NAME_7]’s 2019 [NAME_3]. Internal discussion, contemplation, or planning of a name does not establish any goodwill or reputation in the [NAME_3] trademark nor does it constitute use of a trademark. [ 64 ] [NAME_12]’s oral evidence does not fill that gap. While the Defendants’ Statement of Defence pleads that “Taste of [NAME_3] have been part of [NAME_8]’s cultural program since 2003” , when cross-examined, [NAME_12] confirmed that what [NAME_8] had been doing since 2003 was operating the Taste of Asia festival. [NAME_12] testified that tens of thousands of [NAME_3] cards were produced and distributed, but he had no card, no photograph, no copy, and no reliable recollection of when those cards were distributed, beyond saying he believed 2015 was one year. [NAME_12] acknowledged that staff did the work and he could not identify other documents showing [NAME_8]’s [NAME_3] use before 2020. His evidence on this issue was of limited, if any, value. [ 65 ] [NAME_9]’s evidence is even less helpful on the point of prior [NAME_8] use. She contradicted herself about whether [NAME_8] pre-2020 [NAME_3] use existed as events or only as discussions, and she had no documents to support any pre-2020 public use of [NAME_3] by [NAME_8]. Her evidence does not establish prior use or any goodwill in the [NAME_3] trademark associated with [NAME_8]. [ 66 ] While the Defendants’ Statement of Defence also pleads that [NAME_9] and [NAME_8]’s 2020 [NAME_3] “had been planned since 2018” , both [NAME_12] and [NAME_9] testified that the event was planned in response to the COVID-19 pandemic’s effect on local restaurants, demonstrating conflicting timelines. [ 67 ] There is no credible evidence whatsoever of purported [NAME_8] [NAME_3] use prior to [NAME_9] and [NAME_8]’s use in 2020 with their [NAME_3]. [NAME_12] and [NAME_9]’s testimony of purported earlier use is not credible. The Defendants’ prior use defence rested entirely on oral assertions that the [NAME_3] name had been in use within [NAME_8] since as early as 2003, without producing a single flyer, poster, photograph, email, or any other material bearing the word [NAME_3] from any date prior to August 2019. [ 68 ] The Defendants also relied on the [NAME_7] that [NAME_8] had longstanding goodwill in Taste of Asia. That does not establish any goodwill in [NAME_3]; [NAME_3] is a completely different trademark. Whatever goodwill [NAME_8] built over decades under the Taste of Asia name resides in that name. The services may overlap, but the issue is whether [NAME_8] had developed any reputation and goodwill in [NAME_3] itself. The record does not show that ordinary consumers or any relevant public associated [NAME_3] with [NAME_8] as a source before [NAME_7]’s August 2019 use of [NAME_3] with their [NAME_3]. [ 69 ] The Defendants further suggested that because [NAME_16] had worked with [NAME_8], [NAME_7]’s adoption of [NAME_3] drew on pre-existing [NAME_8] use. The credible evidence is to the contrary. [NAME_16] denied knowledge of [NAME_8] using [NAME_3] while he worked there, and [NAME_12] could not reliably say what [NAME_16] knew. Indeed, [NAME_12] admitted that he could not say that [NAME_16] was not telling the truth. [NAME_16] and [NAME_16]’s earlier association with [NAME_8] does not reliably show either of them had any knowledge of alleged [NAME_3] use by [NAME_8] before [NAME_9] and [NAME_8]’s 2020 [NAME_3]. There is no reliable evidence of [NAME_8]’s pre-2020 use of [NAME_3], or if contemplated for use by [NAME_8], any public use that could reliably establish that [NAME_8] had any prior rights in the trademark. [ 70 ] I therefore reject the counterclaimants’ core premise. [NAME_8] and [COMPANY_3] have not established that [NAME_3] had acquired any goodwill and distinctiveness in their favour before [NAME_7] began using the trademark in August 2019. [ 71 ] That conclusion substantially resolves the counterclaim. Without prior reputation and goodwill in the [NAME_3] trademark attributable to [NAME_8] and/or [COMPANY_3], they cannot show that [NAME_7]’s use of the [NAME_3] trademark in August 2019 with its [NAME_3] or its [NAME_3] TM TO use in September 2020, and subsequent use of [NAME_3] in association with its Carnival or [NAME_3] TM TO program thereafter, resulted in any misrepresentation by [NAME_7]. [NAME_7] has shown uncontradicted evidence of prior commercial use of the [NAME_3] trademark commencing in August 2019. The counterclaim must be dismissed. C. Concurrent Use [ 72 ] I must still address concurrent use, whether even if [NAME_7] had initial goodwill and a distinctive [NAME_3] trademark, the evidence of contemporaneous use by both [NAME_7] and [NAME_8] in 2020 and thereafter results in [NAME_3] not being able to indicate a single source of the [NAME_3] services, and therefore cannot support a valid passing off claim by [NAME_7]. [ 73 ] There was overlapping marketplace exposure by [NAME_9] and [NAME_8] once they publicly launched their February 2020 [NAME_3] and later alleged [NAME_9] [NAME_3] promotions, while [NAME_7] continued with its annual [NAME_3] and [NAME_3] TM TO program. However, the key question under paragraph 7(b) of the Trademarks Act is whether the Defendants directed public attention to their services in a manner likely to cause confusion at the time they commenced doing so. By early February 2020, [NAME_7] had already publicly launched and promoted [NAME_3] in August 2019, prior to [NAME_9] and [NAME_8]’s use of [NAME_3] with their [NAME_3] in 2020. [ 74 ] [NAME_36] confirms that contemporaneous use can negate distinctiveness. However, the evidence must show that by the relevant time the trademark had ceased to indicate a single source. That has not been shown here. [ 75 ] The evidence is to the contrary. [NAME_7]’s 2019 use of [NAME_3] was substantial and public. [NAME_9] and [NAME_8]’ February 2020 use of [NAME_3] came later, in the same market and for closely related services, under the [NAME_3] trademark. That later overlap explains confusion. It does not show that [NAME_7]’s use of [NAME_3] lacked distinctiveness when [NAME_9] and [NAME_8] commenced their alleged infringing use with their 2020 [NAME_3], which is the only use of [NAME_3] by [NAME_9] and [NAME_8] supported by any credible evidence before the Court. [ 76 ] Nor is there any geographic separation between the parties’ use of [NAME_3]. Scarborough and Markham are both within the [NAME_2]. The parties’ services were promoted to overlapping [NAME_2] consumers. The Defendants’ own evidence was that their 2020 program extended across the [NAME_2]. [NAME_7]’s later [NAME_3] TM TO programming confirms the natural overlap in audience and service category. There was no meaningful market separation. D. [NAME_7]’s Claim Arising from the Defendants’ February 2020 [NAME_3] (1) Misrepresentation / Likelihood of Confusion [ 77 ] The next question to be addressed is misrepresentation and likely confusion. Here again, [NAME_7] succeeds against the Defendants. [ 78 ] [NAME_9] and [NAME_8]’s February 2020 public use of [NAME_3] with their 2020 [NAME_3] is not disputed. [NAME_12] and [NAME_9] testified to a media event at Markham Civic Centre in early February 2020, to press releases, to posters, and to media coverage including from Global News, CTV News, the [NAME_2], and OMNI. [NAME_12] testified to exposure in the [NAME_2], including in Markham, Vaughan, Mississauga, and Brampton, where Mayors would attend various restaurants to promote [NAME_9] and [NAME_8]’s 2020 [NAME_3]. The record shows that [NAME_9] and [NAME_8] publicly used [NAME_3] in relation to a 2020 Asian food and restaurant-promotion event and related publicity. [ 79 ] [NAME_9] and [NAME_8]’s use of [NAME_7]’s use of Carnival in association with [NAME_3] does not detract from the likelihood of confusing use of [NAME_3] in association with an Asian food and cultural event. Both operated in the [NAME_2]. Both involved restaurants or food vendors, public attendance, promotion, and an Asian food and culture theme. The ordinary consumer and relevant public as identified above could readily infer a likelihood of affiliation, sponsorship, or expansion from one to the other. [ 80 ] While the evidence of actual confusion is modest, it nevertheless exists. [NAME_10] testified that someone asked her whether the February 2020 [NAME_3] was her event and later sent her promotional material asking the same question. [NAME_14] testified that [NAME_7] saw public commentary criticizing “the 2020 [NAME_3] event” before [NAME_7]’s own 2020 events and programming had occurred, and that [NAME_7] paid for clarifying posts on the [NAME_23] online forum because the criticized percentage-discount offers were not [NAME_7]’s offering but were instead [NAME_9] and [NAME_8]’s offering. Documentary evidence showing relevant posts on the [NAME_23] online forum is in the record. [ 81 ] The documentary support of actual confusion is limited. However, passing off under paragraph 7(b) of the Trademarks Act does not require extensive proved instances of actual confusion where likely confusion is otherwise strong. Here, the use of [NAME_3] with the overlap in services, the common geographic market, and the timing all point to likely confusion as to source, sponsorship, or affiliation. [ 82 ] I therefore find that when [NAME_9] and [NAME_8] commenced public use of [NAME_3] in February 2020 with their [NAME_3], they directed public attention to their services in a manner likely to cause confusion with [NAME_7]’s existing [NAME_3] trademark. That satisfies the misrepresentation element of the paragraph 7(b) claim. [ 83 ] I address [COMPANY_3] separately as a Defendant. It filed a trademark application for [NAME_3] on February 10, 2020, which is now abandoned. [NAME_12] testified that he instructed the filing because [NAME_8] was conducting large-scale press releases and intended future events. Further, [NAME_12] testified on discovery that [COMPANY_3] was incorporated with the intention of expanding the Defendants’ [NAME_3] program and testified at trial that [COMPANY_3] was mistakenly identified as a defendant in a 2022 Statement of Claim in the Ontario Superior Court of Justice that was purportedly related to a [NAME_7] [NAME_3] event. While the February 2020 public event was advanced on the evidence as a [NAME_8]/[NAME_9] initiative, [COMPANY_3]’ use of [NAME_3] as a trade name is also confusing in a manner that satisfies the misrepresentation element of [NAME_7]’s paragraph 7(b) claim. [ 84 ] [NAME_7] also pleaded paragraph 7(c) of the Trademarks Act . I would not grant relief under that provision. The evidence does not show that the Defendants passed off their services “as and for those ordered or requested” . There is no substitution case here. Consumers were not shown to have ordered a [NAME_7] service and received a Defendant’s service instead. The wrong proved is source confusion in the marketplace, not substitution. (2) Actual Damage or Likelihood of Damage [ 85 ] While the issue of whether [NAME_7] has, or will likely, suffer damage or injury to its reputation or goodwill as a result of the Defendants’ impugned activities is conceptually distinct from the issue of the quantum of damages (A Kelly Gill, Fox on Canadian Law of Trade-marks and Unfair Competition, 4th ed ([NAME_2]: Thomson Reuters, 2002) (loose-leaf updated to Release 9, December 2021) at § 4:69), actual or potential damages cannot be presumed, and there must be evidence proving them ( [NAME_10] v [COMPANY_39]. , 2010 FCA 255 [ [NAME_10] ] at para 24; [COMPANY_29]. v [COMPANY_28]. , 2007 FCA 255 at para 35; [COMPANY_46]. v [COMPANY_47] ., 2009 FCA 144 at paras 6-12). Use of an owner’s trademark may cause the owner to suffer an actual loss of control over its trademark, and such loss is sufficient to ground the third component of the tripartite test for passing off ( [NAME_10] at para 28). [ 86 ] [NAME_7] did not prove diversion in any measurable sense. There is no evidence of lost restaurant participants, lost sponsors, or lost attendees attributable to the Defendants’ activities. [NAME_7]’s 2019 and 2020 financial statements do not establish causation, especially given the onset of the COVID-19 pandemic during that period. No reliable inference about lost revenue can be drawn. [ 87 ] The evidence of reputational harm is also limited. [NAME_10] testified about negative social media commentary before [NAME_7]’s 2020 events, and [NAME_14] testified about the [NAME_23] forum posts and [NAME_7]’s efforts to clarify [NAME_3] event difference. That evidence supports marketplace confusion, but not a real monetary loss. [ 88 ] Even so, the third element is met. [NAME_7] had acquired goodwill in [NAME_3], [NAME_9] and [NAME_8]’s commencement of use of the trademark for closely related services in the same market caused [NAME_7] to lose exclusive control over that goodwill. That is the harm recognized in [NAME_10] at paragraph 28. It is also evident on this record that [NAME_7] responded to public confusion. The damage element is satisfied. [ 89 ] The damage element is satisfied as for [COMPANY_3] as well. [COMPANY_3]’ commencement of use of [NAME_3] as a trade name in 2020 caused [NAME_7] to lose exclusive control over [NAME_7]’s goodwill in the [NAME_3] trademark. As noted above, [NAME_12] testified at trial that [COMPANY_3] was mistakenly identified as a defendant in a 2022 Statement of Claim in the Ontario Superior Court of Justice that was purportedly related to a [NAME_7] [NAME_3] event. [ 90 ] [NAME_8] and [COMPANY_3] also pleaded, in substance, that [NAME_7] copied a “model” or “concept” associated with Taste of Asia. That submission has no merit in this action. [ 91 ] The result on liability can be stated in brief: (a) [NAME_7] proved that [NAME_3] had acquired reputation and goodwill as used with [NAME_7]’s services in the relevant [NAME_2] market by February 2020; (b) [NAME_9] and [NAME_8] then commenced or engaged in public-facing use of [NAME_3] in a manner likely to cause confusion with [NAME_7]’s services, and [COMPANY_3]’ commenced use of [NAME_3] as a trade name in a confusing manner; and (c) the Defendants’ conduct caused at least potential damage through loss of control over [NAME_7]’s goodwill in the [NAME_3] trademark. [ 92 ] [NAME_7] therefore succeeds under paragraph 7(b) of the Trademarks Act against the Defendants. [NAME_7] does not succeed under paragraph 7(c) of the Trademarks Act . E. [NAME_8]/[COMPANY_3]’ Counterclaim [ 93 ] As stated above, the counterclaim of [NAME_8] and [COMPANY_3] is dismissed.

VI. Remedies [ 94 ] The relief must be tailored to the wrong proved. This case is not about [NAME_7]’s registered [NAME_3] rights under sections 19 and 20 of the Trademarks Act ; it is about passing off proved on this record in relation to multicultural entertainment exhibitions and the organization of festivals to promote food, restaurants, the hospitality industry, and food culture in the [NAME_2] under the [NAME_3] trademark. [ 95 ] Proceedings brought under section 7 of the Trademarks Act can result in the Court granting relief, including by way of injunction, recovery of damages or profits, and disposal of offending materials in connection therewith ( Trademarks Act , s 53.2(1)). A. Injunction / Delivery Up [ 96 ] To obtain a permanent injunction, a party is required to establish: (1) its legal rights; (2) that damages are an inadequate remedy; and (3) that there is no impediment to the court’s discretion to grant an injunction ( [COMPANY_48]. v [COMPANY_49]. , 2017 SCC 34 at para 66). [ 97 ] Those requirements are met. [NAME_7] proved its legal right in the form of protectable goodwill in the [NAME_3] trademark at the relevant time and proved passing off under paragraph 7(b) of the Trademarks Act . Damages are inadequate because the central injury is loss of control over the trademark’s goodwill and the risk of recurrent confusion. The record shows that the [NAME_9] and [NAME_8]’s [NAME_3] use may have continued after their February 2020 [NAME_3] event. [NAME_9] testified to hard-copy [NAME_3] coupon books in 2021 and 2022 and [NAME_9]’s continued public mention of [NAME_3] in 2023 and 2024 at the Taste of Asia events of those years. [NAME_12] testified that [NAME_9] continued to have a booth at Taste of Asia events in 2022 to 2025 with discount cards and restaurant promotion, and he also testified that he may revisit [COMPANY_3]’ [NAME_3] trademark filing after the litigation. There is therefore a sufficient risk of future confusion absent injunctive relief. [ 98 ] The injunction must nevertheless be narrow. I will permanently enjoin the Defendants, and those acting under their direction or control, from using [NAME_3] or any materially similar variant, in association with multicultural entertainment exhibitions and the organization of festivals to promote food, restaurants, the hospitality industry, and food culture, restaurant-promotion programs, coupon-book or discount-card programs, and directly related event-promotion services in the [NAME_2], in a manner likely to cause confusion with [NAME_7]’s services. [ 99 ] Further, I permanently enjoin [COMPANY_3] from using [NAME_3] as a trade name. Indeed, [NAME_12] testified on discovery that [COMPANY_3] was incorporated with the intention of expanding the Defendants’ [NAME_3] program and testified at trial that [COMPANY_3] was mistakenly identified as a defendant in a 2022 Statement of Claim in the Ontario Superior Court of Justice that was purportedly related to a [NAME_7] [NAME_3] event. [COMPANY_3] cannot continue its use of [NAME_3] as a trade name due to resulting confusion. [ 100 ] I do not order delivery up or destruction. Delivery up depends on identification of offending materials and necessity to make injunctive relief effective. The record does not identify specific materials presently in circulation or establish that such relief is necessary. [NAME_9] pleads that the “[NAME_3]” webpage was deleted; [NAME_7] pleads continuing social media presence and ongoing use by [NAME_9]. There is no evidence in the record regarding whether and for how long [NAME_9]’s materials related to the February 2020 [NAME_3] remained accessible online. However, if there is any continued use of [NAME_3] online by the Defendants counter to this injunction, it must be discontinued. B. Damages / Accounting of Profits [ 101 ] On damages, [NAME_7] does not advance a quantified claim for damages. Its financial statements do not permit attribution of any loss to the Defendants’ impugned activities. The evidence that [NAME_7] spent some marketing effort to distinguish its activities from [NAME_9] and [NAME_8]’s 2020 [NAME_3] event shows inconvenience and some reputational concern, but not a measurable loss. [ 102 ] An accounting of profits is also not warranted. No financial record enabling attribution of profits to the Defendants’ impugned activity is in evidence. Indeed, the record contains no financial records relating to [NAME_9] and [NAME_8]’s 2020 [NAME_3] or their subsequent alleged [NAME_3] activities, or financial records relating to [COMPANY_3]. [ 103 ] The remaining question is whether nominal damages should be awarded. In a passing off action that is not an action for infringement of any registered trademarks, where the plaintiff has not provided any evidence to support any particular quantum of losses suffered, if any, by reason of the activities of the defendant, nominal damages may be based on an estimate of losses including an amount sufficient to serve as a deterrent to others contemplating similar activities ( [NAME_50] v [NAME_52] , 2015 FC 42 [ [NAME_51] ] at paras 5-6, 14). [ 104 ] This is such a case. [NAME_7] proved a legal wrong and proved actual or potential damage in the form of loss of control over its goodwill in the [NAME_3] trademark, including modest evidence of instances of actual confusion. However, the record does not support substantial compensatory damages. A modest nominal award is therefore appropriate. In [NAME_51] , the plaintiffs asked for $25,000.00 and Justice Hughes allowed $10,000.00 in damages given that, while the plaintiffs had not provided any evidence to support any particular quantum of losses suffered, they had suffered some damages and a deterrent was warranted ( [NAME_51] at para 14). [ 105 ] I fix nominal damages at $5,000.00, payable by the Defendants jointly and severally. That amount recognizes the need for a limited deterrent, while remaining proportionate to the lack of evidentiary record on quantifiable harm and some Defendants’ not-for-profit status. C. Aggravated, Punitive, or Exemplary Damages [ 106 ] I do not award aggravated, punitive, or exemplary damages. [ 107 ] Punitive and exemplary damages are awarded against a defendant in exceptional cases for malicious, oppressive and high-handed misconduct that offends the Court’s sense of decency ( [COMPANY_54]. v [NAME_56] ([NAME_57]), 2024 FC 2089 at para 44, citing [NAME_58] v [NAME_59]. , 2002 SCC 18 [ [NAME_58] ] at para 36; [COMPANY_61] v [COMPANY_62]. , 2014 FC 559 at para 68). Punitive and exemplary damages are not compensatory in nature, but are rather a punishment or a deterrent ( [NAME_58] at para 36; [COMPANY_63] v [COMPANY_64]., 1998 CanLII 7797 (FC) at para 5). [ 108 ] The Defendants’ conduct was wrongful in the passing off sense that I have found, but the record does not establish the kind of exceptional misconduct required for punitive or aggravated relief.

VII. Costs [ 109 ] Costs generally follow the event. [NAME_7] succeeded on the principal liability issue against the Defendants for passing off under paragraph 7(b) of the Trademarks Act , and [NAME_7] defeated the counterclaim brought by [NAME_8] and [COMPANY_3]. [ 110 ] [NAME_7] seeks costs, including: (a) costs of the proceeding on a substantial indemnity basis with respect to the passing off claim; (b) full indemnity costs or a lump sum award with respect to the counterclaim; (c) assessment of costs awarded in favour of the Plaintiff by the Court’s Order of March 10, 2026 in respect of the Defendants’ failed application to add [NAME_25] as a witness; (d) a lump sum costs award, in the alternative or in addition, reflecting the volume of unnecessary work generated by the Defendants’ conduct; (e) in the event the Court is satisfied that Rule 404 of the Federal Courts Rules , SOR/98-106, is engaged, an order that costs or a portion thereof be payable personally by defence counsel. [ 111 ] [NAME_7] submits that the complexity and duration of the litigation justify costs at the high end of Column 3 of Tariff B. The litigation spanned over four years, involved multiple case management conferences, interlocutory motions, examinations for discovery of six witnesses, and a five-day trial. [ 112 ] [NAME_7]’s primary basis for seeking elevated costs is the Defendants’ conduct throughout this proceeding, which [NAME_7] submits significantly increased the cost and duration of the litigation. The Defendants’ conduct formed a consistent pattern throughout the proceeding. Indeed, at the Trial Management Conference of February 19, 2026, the Court directed that all outstanding court orders be complied with immediately, stated that any further missed deadlines would attract costs of $5,000.00 per day, and acknowledged that the Plaintiff reserved its right to bring the full compliance record to the Court’s attention at the costs stage. [ 113 ] The Defendants’ relevant conduct and context from [NAME_7]’s submitted full compliance record follows: (a) pre-litigation non-responsiveness from April 2021 to June 2021; (b) post-pleadings silence from January 2022 to November 2022 and the need for case management due to lack of responsiveness; (c) discovery scheduling issues from April 2023 to August 2023 and a lack of cooperation by the Defendants; (d) change of representative dispute and discoveries in January 2024: (i) further Court intervention was required due to the Defendants’ inability to confirm discovery dates; (ii) after 14 months of no objection to [NAME_14] as [NAME_7]’s discovery representative, Defendants’ counsel wrote on January 2, 2024, demanding that [NAME_10] be substituted; (iii) while the Plaintiff’s response rejected this demand, documenting that Defendants’ counsel had been on notice of [NAME_14]’s role since October 2022 without ever raising any objection, to avoid any further delays, the Plaintiff then accommodated the request and agreed to have [NAME_10] testify, who required an interpreter at additional cost to the Plaintiff; (e) transcript non-payment leading to compressed undertakings timeline from February 2024 to April 2024; (f) examinations of [NAME_16] and [NAME_16] in 2024: (i) the Defendants insisted on examining [NAME_16] and [NAME_16] for discovery, generating substantial collateral litigation including scheduling disputes, refusals motions, and a striking motion; (ii) at trial, the Defendants filed no read-ins from [NAME_16] or [NAME_16]’s transcript and made no substantive use of either examination; (iii) [NAME_16]’s transcript appeared in the e-trial system only on the morning of Day 4 of trial, without prior notice or production to the Plaintiff, a matter that the Plaintiff raised before the Court that morning; (g) Trial Record preparation non-response and late amendments from October 2025 to November 2025; (h) Joint Book of Documents and last-minute additions on the filing deadline on February 20, 2026: (i) [NAME_7] served a draft Joint Book of Documents to the Defendants by February 13, 2026, however Defendants’ counsel provided his clients’ version of the Joint Book of Documents on the morning of the February 20, 2026 deadline; (ii) on February 20, 2026, the Defendants then made successive additional demands right up to the 4:30 pm deadline: requesting the inclusion of [NAME_7] productions not previously flagged, producing [NAME_8] 27 for the first time, and requesting further additions at 3:50 pm; (i) settlement offer served and withdrawn following litigation threats from January 2026 to February 2026, during which [NAME_7] withdrew its settlement offer on February 13, 2026, following the Defendants’ non-response to the settlement offer and baseless show cause motion threat; (j) pre-trial deadline failures from February 2026 to March 2026: (i) the Defendants failed to file the Agreed Statement of Facts, Witness List, and Proposed Read-ins by the Court’s February 13, 2026 deadline, resulting in a Trial Management Conference on February 19, 2026; (ii) at the February 19, 2026 Trial Management Conference, the Court directed that any further missed deadlines would attract costs of $5,000.00 per day; (iii) on February 20, 2026, the Plaintiff received the Defendants’ last-minute Joint Book of Documents additions (referenced in (h) above), and the Defendants’ proposed read-ins from the examination of [NAME_7], resulting in the Plaintiff having one week to review the transcripts and provide qualifications by the February 27, 2026 deadline to exchange qualifications; (k) last-minute witness addition on March 6, 2026: (i) Defendants’ counsel filed a letter with the Court seeking to introduce [NAME_25] as a new witness at 1:26 AM on Friday, March 6, 2026, the last business day before trial starting on Monday, March 9, 2026; (ii) the Plaintiff responded to the Defendants’ request on the morning of March 6, 2026; (iii) the Court’s direction on March 6, 2026 denied the Defendants’ request, and an order refusing the application followed, dated March 10, 2026, in which costs of the [NAME_25] application were awarded in favour of the Plaintiff. [ 114 ] Plaintiff’s counsel asked the Court to consider granting relief under Rule 404 of the Federal Courts Rules and while Defendants’ counsel did repeatedly fail to comply with timing requirements as issued by the Court and as reasonably requested by Plaintiff’s counsel, I do not find it appropriate to invoke relief under Rule 404. [ 115 ] [ADDRESS] may award increased costs pursuant to the Tariff, and has discretion to depart from the Tariff, especially where it considers an award of costs according to the Tariff to be unsatisfactory ( Consorzio del Prosciutto di [NAME_66] v [COMPANY_67] ., 2002 FCA 417 at paras 9-10). [ 116 ] The Plaintiff submitted a bill of costs under Column 3 of Tariff B with fees in the amount of $80,640.00, and disbursements in the amount of $19,861.52. In my discretion, I find certain of the preparation costs, travel costs, and interpreter costs either too high or unnecessary and award fees in the amount of $50,000.00 and disbursements in the amount of $16,730.31. [ 117 ] In these circumstances, [NAME_7] is entitled to: (a) costs assessed in accordance with the upper end of Column 3 of Tariff B, as set out above, in the amount of $66,730.31; and (b) in addition, a lump sum costs award of $5,000.00, reflecting the volume of unnecessary work for the Plaintiff generated by the Defendants’ conduct. [ 118 ] [NAME_8], [NAME_9], and [COMPANY_3] shall pay those costs jointly and severally.

VIII. Conclusion [ 119 ] [NAME_7] has proved its claim against [NAME_8], [NAME_9], and [COMPANY_3] under paragraph 7(b) of the Trademarks Act . [ 120 ] [NAME_7] has not established a claim under paragraph 7(c) of the Trademarks Act . [ 121 ] [NAME_8] and [COMPANY_3]’ counterclaim is dismissed. [ 122 ] The Defendants are permanently enjoined, and so are those acting under their direction or control, from using [NAME_3] or any materially similar variant, in association with multicultural entertainment exhibitions and the organization of festivals to promote food, restaurants, the hospitality industry, and food culture, restaurant-promotion programs, coupon-book or discount-card programs, and directly related event-promotion services in the [NAME_2], in a manner likely to cause confusion with [NAME_7]’s services. [COMPANY_3] is permanently enjoined from using [NAME_3] as a trade name. [ 123 ] [NAME_8], [NAME_9], and [COMPANY_3] shall pay [NAME_7] nominal damages in the amount of $5,000.00, jointly and severally. [ 124 ] [NAME_8], [NAME_9], and [COMPANY_3] shall pay [NAME_7] its costs jointly and severally as follows: (a) costs assessed in accordance with the upper end of Column 3 of Tariff B, as set out above, in the amount of $66,730.31; (b) in addition, a lump sum costs award of $5,000.00, reflecting the volume of unnecessary work for the Plaintiff generated by the Defendants’ conduct.

JUDGMENT in T-1346-21 THIS COURT’S

JUDGMENT is that : [NAME_7] has proved its claim against [NAME_8], [NAME_9], and [COMPANY_3] under paragraph 7(b) of the Trademarks Act . [NAME_7] has not established a claim under paragraph 7(c) of the Trademarks Act . [NAME_8] and [COMPANY_3]’ counterclaim is dismissed. The Defendants are permanently enjoined, and so are those acting under their direction or control, from using [NAME_3] or any materially similar variant, in association with multicultural entertainment exhibitions and the organization of festivals to promote food, restaurants, the hospitality industry, and food culture, restaurant-promotion programs, coupon-book or discount-card programs, and directly related event-promotion services in the [NAME_2], in a manner likely to cause confusion with [NAME_7]’s services. [COMPANY_3] is permanently enjoined from using [NAME_3] as a trade name. [NAME_8], [NAME_9], and [COMPANY_3] shall pay [NAME_7] nominal damages in the amount of $5,000.00, jointly and severally. [NAME_8], [NAME_9], and [COMPANY_3] shall pay [NAME_7] its costs jointly and severally as follows: costs assessed in accordance with the upper end of Column 3 of Tariff B, in the amount of $66,730.31; in addition, a lump sum costs award of $5,000.00, reflecting the volume of unnecessary work for the Plaintiff generated by the Defendants’ conduct. "Michael D. Manson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1346-21 STYLE OF CAUSE: [COMPANY_1] v [COMPANY_4]., [COMPANY_5], AND [COMPANY_6] OF HEARING: [NAME_2], Ontario AND Vancouver, BC DATE OF HEARING: March 9-12, 2026 AND March 18, 2026

JUDGMENT AND

REASONS: MANSON J. DATED: APRIL 14, 2026 APPEARANCES : [NAME_69] For The Plaintiff [NAME_70] For The Defendants SOLICITORS OF RECORD : [NAME_71] and Solicitor Thornhill, Ontario For The Plaintiff [NAME_72] and Solicitors [NAME_2], Ontario For The Defendants