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ARTICLE · 12 NOVEMBER 2024

The Lowdown On Get-Ups: BioSteel And The Evidence Needed To Score On A Passing Off Claim

McCarthy Tétrault
McCarthy Tétrault
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McCarthy Tétrault

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The Ontario Superior Court of Justice in BioSteel Inc. v. Cizzle Brands Ltd., 2024 ONSC 5515, recently outlined the type of evidence that a company must proffer in order to prove that another company's product.

CanadaLitigation, Mediation & Arbitration
Consumer Markets Perspectives
Consumer Markets Perspectives
Trevor Courtis
Trevor Courtis
Dorothy Charach
Dorothy Charach
Emmanuel Onyemachi
Emmanuel Onyemachi
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The Ontario Superior Court of Justice in BioSteel Inc. v. Cizzle Brands Ltd., 2024 ONSC 5515, recently outlined the type of evidence that a company must proffer in order to prove that another company's product is being "passed off" as one of its own. The Court refused to grant an injunction sought by BioSteel Inc. to prohibit Cizzle Brands Ltd., the maker of Cwench Hydration, from continuing to market and sell sports drinks that they alleged were an "obvious rip-off of BioSteel." It is clear that the tort of "passing off" is not easy to establish; however, in the right case with the right evidentiary record, it could lead to injunctive relief.

Background

BioSteel is a sports drink maker that at one time was the official sports drink of the NHL, had 12% of the Canadian sports beverage market, and counted Connor McDavid and Patrick Mahomes as endorsers. BioSteel encountered financial challenges and went through Companies' Creditors Arrangement Act proceedings in

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