Canadian Federal Court Sets Test for New Evidence in Trademark Appeals

In Products Unlimited, Inc. v. Five Seasons Comfort Limited, the Federal Court developed and applied a test for granting leave to introduce new evidence on appeal from Trademark Opposition Board decisions. The case marks the initial judicial interpretation of amended subsection 56(5) of the Trademarks Act.

The court overturned the Board's decision after considering the additional evidence, finding the mark was not primarily functional and should be registered. The ruling provides guidance on when parties may supplement the record in appeals of expungement and opposition proceedings.

Practitioners in Canada should note the strict standards likely to apply to future requests for leave. The decision clarifies procedural requirements for trademark appeals before the Federal Court.

Sources: https://www.nortonrosefulbright.com/en/knowledge/publications/5b2f7f68/start-strong-federal-court-sets-test-for-new-evidence-on-appeal-in-trademark-expungement https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/529700/index.do