Executive Summary: Key Legal and Evidentiary Issues

• A former restaurant's trademark rights survived the closure of its physical locations and remained enforceable against a competitor.
   
• Confusion analysis under the Trademarks Act turned on whether a new restaurant's branding, packaging, and public statements suggested a connection to the closed establishment.
   
• Claimed verbal authorization to use trademarks and materials from a former employer proved insufficient to establish a defence at the interlocutory stage.
   
• Evidence of a media interview in which the defendant's chef acknowledged imitating the former restaurant weighed heavily in the infringement analysis.
   
• Trade secret claims over a recipe faltered because the plaintiff had restricted the defendant's own access to the complete formula while employed.
   
• Ultimately, the balance of convenience justified a narrowly tailored injunction that preserved the defendant's ability to continue operating its business.

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Facts of the case

Restaurant Les bons gars inc. owns the trademarks and name of Bar-B Barn, a Montreal rib restaurant that operated for decades before closing its locations. Although Bar-B Barn no longer operates, its marks remain on the trademark register, and the corporate entity is represented by Thomas McQueen. Cuisine philippine Fernando inc., operated by Maria Leni, opened after Bar-B Barn's closure with Fernando Benliro, a former Bar-B Barn cook, as its chef. Fernando inc. used takeout boxes and bags bearing Bar-B Barn's logo and colours, served a rib recipe closely resembling Bar-B Barn's, and decorated its premises with elements evocative of the former restaurant. Bons gars inc. sought an interlocutory injunction alleging unauthorized use of its trademarks and recipe. Benliro maintained that McQueen had authorized him, after Bar-B Barn's closure, to take restaurant materials to help him open his own establishment, and that his ribs were prepared using a different method.

Policy and legislative provisions at issue

The dispute centred on the Trademarks Act's protections against unauthorized use of a registered mark. Once registered, a trademark grants its owner the exclusive right to use it across Canada for its associated goods or services, and infringement occurs where a defendant's use creates confusion as to the source of goods. Confusion is assessed on a multifactorial basis considering the distinctiveness of the marks, the length of their use, the type of goods or business involved, the nature of the trade, and the degree of resemblance between the marks. Infringement is presumed where the mark used is identical to or indistinguishable from the registered mark. The three-part test governing interlocutory injunctions also applied: a serious question or apparent right, serious or irreparable harm absent an injunction, and a balance of convenience favouring the applicant. Because the injunction sought mirrored the relief sought on the merits, Bons gars inc. needed to show a strong apparent right rather than merely a serious question.

Reasoning and analysis

The court found little doubt that Fernando inc. was exploiting the Bar-B Barn mark, pointing to a CTV interview in which its chef acknowledged the connection. Benliro's claimed verbal authorization from McQueen was evaluated against his own sworn statements, which described permission to take "whatever we wanted," including equipment, boxes, bags, and décor. The court considered this authorization too tenuous to justify continued use of the trademark nearly two years after Fernando inc. opened, noting it was implausible the restaurant had not reprinted or remanufactured its own packaging materials by that point. On the recipe claim, the court reached the opposite conclusion. Bons gars inc. had restricted even its own employees, including Benliro, from full access to the recipe, undermining any claim that Benliro had misappropriated it. Benliro maintained he reconstructed the recipe from memory and could not replicate it exactly since he lacked access to the original rotisserie equipment. Given the insufficient evidentiary basis to link Benliro's version to the protected recipe, the court declined to extend the injunction to recipe use. Harm from trademark infringement was treated as presumed rather than requiring separate proof, and combined with the strong apparent right on that issue, weighed in favour of relief. On the balance of convenience, the court noted that ribs represented roughly half of Fernando inc.'s sales, such that barring the recipe outright would significantly harm the smaller restaurant, whereas Bons gars inc. would suffer no further harm once the trademark use stopped. The court also noted Fernando inc. had already ceased using the branded takeout materials in August 2026 without apparent business disruption.

Ruling and overall outcome

The court granted the injunction in part, ruling in favour of Bons gars inc. on the trademark infringement claim while declining to extend relief to the rib recipe. Cuisine Philippine Fernando inc., Maria Leni, and Fernando Benliro were ordered to immediately cease using the Bar-B Barn name, logo, colours, packaging, or any signage likely to create confusion with the Bar-B Barn brand, and to remove existing branded materials, pending judgment on the merits. The court did not order destruction of the disputed materials at this stage, leaving that question for trial. No monetary amount was ordered, granted, or awarded in this decision; court costs were left to follow the eventual outcome on the merits.