Executive Summary: Key Legal and Evidentiary Issues

• Competing claims to the ASIALICIOUS trademark between FACT and the Defendants (FCCM, Asialicious Holdings, and CCHAC) for Asian food and cultural events in the Greater Toronto Area

• FACT established prior public use of ASIALICIOUS through its August 2019 Carnival event, predating the Defendants' first credible public use in February 2020

• Defendants failed to produce any documentary evidence — no flyer, poster, photograph, email, or any other material — supporting their claim of ASIALICIOUS use before August 2019

• Credibility of key defence witnesses was undermined by imprecise testimony, internal contradictions, and inability to corroborate oral assertions with physical evidence

• Passing off under paragraph 7(b) of the Trademarks Act was established against all Defendants, while the paragraph 7(c) substitution claim was not supported on the evidentiary record

• The Defendants' counterclaim alleging FACT committed passing off was dismissed for failure to prove prior goodwill or distinctiveness in the ASIALICIOUS trademark

The origins of the dispute

The Federation of Asian Canadians Toronto (FACT), a not-for-profit corporation incorporated in Ontario on June 3, 2019, was created in connection with the organization of a recurring Asian food and cultural event in Scarborough. Its president, Benny Cheung, testified that Toronto City Councillor Cynthia Lai suggested the name ASIALICIOUS in early 2019, based on the Summerlicious and Winterlicious events that take place in Toronto. FACT held its inaugural ASIALICIOUS Carnival at Woodside Square in Scarborough in August 2019, featuring food vendors, cultural performances, and restaurant participation. The event was promoted through television, radio, newspaper advertising, a press conference, and printed program books, and drew significant public attendance.

The Defendants and their involvement

The Federation of Chinese Canadians in Markham (FCCM), a not-for-profit corporation incorporated in Ontario on May 22, 1992 and chaired by Dr. Ken Ng, had operated food-related programming for many years, including the Taste of Asia events. The Chinese Cuisine & Hospitality Association of Canada (CCHAC), a federally incorporated corporation established in November 2016 and founded by Catherine Hou, worked with FCCM on food-related initiatives. In February 2020, CCHAC and FCCM jointly held an ASIALICIOUS Festival based in Markham with participating restaurants across the GTA. Asialicious Holdings Inc., an Ontario corporation incorporated on February 5, 2020 with Dr. Ng as its director and the only person materially connected to it on the record, filed a Canadian trademark application for ASIALICIOUS on February 10, 2020 — an application that was abandoned on March 24, 2024.

Competing trademark filings and the race to register

Shortly after Asialicious Holdings filed its trademark application, Wan Ling Leung, a director and officer of FACT, filed two Canadian trademark applications for ASIALICIOUS on February 13, 2020. On March 30, 2020, FACT issued a cheque to pay the invoice Ms. Leung submitted for the filing services. Ms. Leung later signed a trademark assignment of each of the applications to FACT once she realized they had been filed in her own name rather than FACT's name, because it had always been her intention that FACT own the trademark applications. FACT's two ASIALICIOUS trademark registrations were eventually granted — TMA 1,366,402 on December 12, 2025 and TMA 1,292,236 on February 17, 2026 — covering promotional services relating to events and programs showcasing the diversity of Canadian cuisine, organization of festivals to promote food, restaurants, the hospitality industry, and food culture, and multicultural entertainment exhibitions. The Defendants never commenced expungement proceedings nor challenged the validity of either registration.

The evidentiary battle over prior use

The central factual dispute was whether FCCM had used ASIALICIOUS publicly before FACT's August 2019 Carnival. Dr. Ng testified that he first used the ASIALICIOUS name somewhere between 2013 and 2015 in discussions with other FCCM members, and that a team led by Sylvia Cai was developing a restaurant discount-card concept around 2014 or 2015. He testified that FCCM used the ASIALICIOUS name on discount cards and that tens of thousands of discount cards were produced and distributed. However, the Court found this evidence critically deficient: Dr. Ng could not produce a single card, photograph, copy, or other document showing pre-2019 public use of ASIALICIOUS. He did not know which years the alleged discount cards were distributed, beyond saying he believed 2015 was one year. Internal FCCM emails from February 26, 2015 referenced "Asianlicious" (with an "n"), a "FCCM/Taste of Asia Card," and "FCCM cards," but no attachment to those emails showing an actual card was in evidence. The Court found the emails showed, at most, internal naming options under discussion. Ms. Hou's testimony was equally unreliable — she contradicted herself about whether FCCM's pre-2019 ASIALICIOUS activities existed as events or only as discussions, and she admitted on cross-examination that she was not on the FCCM board and did not attend FCCM board meetings. The Court rejected the Defendants' prior use defence entirely, noting that internal discussion, contemplation, or planning of a name does not establish any goodwill or reputation in the ASIALICIOUS trademark nor does it constitute use of a trademark.

The passing off analysis

The Court applied the three-part test from the Supreme Court of Canada's Ciba-Geigy decision, as affirmed in Kirkbi. On the first element — goodwill and distinctiveness — the Court found that FACT had established that ASIALICIOUS acquired source significance in the relevant GTA market by February 2020 through its substantial 2019 Carnival event and associated promotional activities. FACT's ASIALICIOUS-based design marks appeared on banners, posters, program materials, and related promotions, linking the events to FACT as the source and organizer. On the second element — misrepresentation and likelihood of confusion — the Court found that CCHAC and FCCM's February 2020 ASIALICIOUS Festival, held in the same geographic market for closely related services, was likely to cause confusion with FACT's existing ASIALICIOUS trademark. Modest but real evidence of actual confusion existed: Ms. Cheung testified that someone asked her whether the February 2020 ASIALICIOUS Festival was her event and that someone later sent her promotional material asking the same question. Mr. Wan testified that FACT saw public commentary criticizing "the 2020 Asialicious event" before FACT's own 2020 events and programming had occurred, and that FACT paid for clarifying posts on the RedFlagDeals.com online forum because the criticized percentage-discount offers were not FACT's offering but were instead CCHAC and FCCM's offering. On the third element — damage — although FACT could not prove measurable financial losses, the Court held that loss of exclusive control over the trademark's goodwill was sufficient harm, as recognized in Cheung at paragraph 28.

The paragraph 7(c) claim and the counterclaim

The Court declined to grant relief under paragraph 7(c) of the Trademarks Act, which prohibits passing off "other goods or services as and for those ordered or requested." No evidence showed that consumers ordered a FACT service and received a Defendant's service instead; the wrong proved was source confusion in the marketplace, not substitution. The counterclaim brought by FCCM and Asialicious Holdings was dismissed because they had not established that ASIALICIOUS had acquired any goodwill and distinctiveness in their favour before FACT began using the trademark in August 2019.

The ruling and remedies

The Court ruled in favour of FACT under paragraph 7(b) of the Trademarks Act against all three Defendants. Justice Manson permanently enjoined the Defendants, and those acting under their direction or control, from using ASIALICIOUS 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 GTA, in a manner likely to cause confusion with FACT's services. Asialicious Holdings was separately and permanently enjoined from using ASIALICIOUS as a trade name. On damages, the Court fixed nominal damages at $5,000.00, payable by the Defendants jointly and severally, recognizing 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. The Defendants were also ordered to pay FACT its costs jointly and severally: costs assessed in accordance with the upper end of Column 3 of Tariff B in the amount of $66,730.31, plus a lump sum costs award of $5,000.00 reflecting the volume of unnecessary work for the Plaintiff generated by the Defendants' conduct. Aggravated, punitive, or exemplary damages were not awarded, as the record did not establish the kind of exceptional misconduct required for such relief.