In Chwaja v. 0710674 BC Ltd. (Cottonmouth), 2025 FC 312, the appellant appealed a decision of the Trademarks Opposition Board (TMOB) denying reinstatement of his trademark application that was deemed abandoned under section 38(11) of the Trademarks Act.
Prior to the appeal, the appellant's trademark application was opposed by the respondent and the application was deemed abandoned because the appellant failed to file a counter statement by the relevant deadline. After the application was deemed abandoned, the appellant requested that the application be reinstated, but the TMOB noted that it did not have jurisdiction to revive the application after it was deemed abandoned.
On appeal to the Federal Court, the appellant contended that the TMOB could grant a retroactive extension of time and revive the application, while the respondent argued that the TMOB was functus officio after deeming the application abandoned. As discussed by the Court, "the doctrine of functus officio holds that a decision maker, having reached a final decision in respect of a matter, cannot revisit that decision, subject to only limited exceptions".
While the Court noted that the issue of the TMOB's jurisdiction was outside the scope of the appeal, it nevertheless discussed the issue after holding that the TMOB did not err in deeming the application abandoned due to the appellant's failure to file a counter statement by the deadline.
On the issue of the TMOB's jurisdiction, the Court stated that "the jurisprudence is clear that trademark applications, once refused, cannot be revisited by the decision maker after a final decision has been made" and "[t]he preponderance of this Court's jurisprudence is to the effect that a retroactive extension of time under the Act cannot be considered once the Registrar is functus officio".
The decision can be found here.
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