• Appeal Dismissed: Despite Registrar’s Improper Reliance on a “Surrounding Circumstance”, Judge Was Correct to Apply Reasonableness Standard in Face of New Evidence Filed on Appeal
  • February 25, 2015 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Cortefiel, S.A. v. Gildan Apparel (Canada) LP, 2014 FCA 255

    This was an appeal by Cortefiel, S.A. on the basis that the Federal Court judge made a palpable and overriding error or an error of law in concluding that new evidence filed before her in the appeal pursuant to subsection 56(1) of the Trademarks Act would not have materially affected the decision of the Registrar of Trade-marks (the Opposition Board).

    The Court of Appeal held that no such error occurred, and that it was proper for the judge to apply the reasonableness standard rather than engage in deciding the matter de novo. The Court of Appeal agreed with the appellant that the judge should not have relied on an alleged difference between an Examiner’s finding and a Registrar’s finding to conclude that there was no obligation to expressly consider the initial approval or disapproval of the appellant’s application for publication. Nevertheless, the Court of Appeal found that the absence of this potentially relevant surrounding circumstance from the Registrar’s confusion analysis was neither sufficient to render its outcome unreasonable nor the judge’s application of the standard of review improper.

    Therefore, the Court of Appeal dismissed the appeal with costs to the Respondent.