Canadian sustainable-travel company, G.A.P. Adventures Inc.
("G.A.P. Adventures", now known as G Adventures), has
suffered another blow in the latest round of its trade-mark dispute
with American retail giant, The Gap, Inc. ("The
In the underlying case, The Gap is seeking to prevent G.A.P.
Adventures from using the GAP trade-mark in association with
inter alia, retail store services. In a prior decision of
the case management judge, upheld by the Federal Court (2011 FC 1526), The GAP was granted leave to
amend its statement of claim to include online retail store
G.A.P. Adventures appealed to the Federal Court of Appeal. In a
recent decision (2012 FCA 101), the Federal Court of Appeal
denied G.A.P. Adventures leave to file new evidence on the appeal,
finding no special circumstances that warranted a departure from
the general rule that an appeal should be based on the factual
record before the court below.
In the matter under appeal, G.A.P. Adventures argued that the
addition of "online retail store services" was not
supported by the facts previously pled which mentioned only
"retail store services". The Federal Court disagreed
holding that in today's day and age, the phrase "retail
store services" may mean more than merely operating a brick
and mortar building from which one sells goods and services. The
"services" of a retail store may include online
advertising, tweeting, emailing customers and prospective
customers, and offering goods and services over the internet. As
the amendment would help define the issues between the parties and
was supported by facts already pled, the Federal Court found that
allowing the amendment would not cause real injustice to G.A.P.
While the appeal on the issue of the amendment was scheduled to
be heard on April 17, 2012, it was discontinued in the days leading
up to the hearing. The hearing in the main action is scheduled for
April 30, 2012.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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