- in Asia
- with readers working within the Chemicals industries
In Nielsen Consumer LLC v. Toronto-Dominion Bank, the Federal Court applied its more flexible approach for admitting new evidence in appeals of decisions of the Registrar of Trademarks, as previously set out in Products Unlimited, Inc. v. Five Seasons Comfort Limited.
In the underlying decision, the Registrar of Trademarks had expunged the registration for the trademark TDLINX under section 45 of the Trademarks Act (the “Act”) due to the registrant’s failure to submit evidence of use. On appeal, the appellate (who was the trademark registrant) sought leave under subsection 56(5) of the Act to introduce evidence of use, asserting that the evidence was not initially filed due to inadvertence on the part of one of the registrant’s employees.
In applying the approach set out in Products Unlimited, the Court ultimately granted leave to introduce the evidence and partially reinstated the trademark registration. The Court, referencing Products Unlimited, noted that granting leave under subsection 56(5) “’is ultimately directed at the interests of justice and considers all relevant factors applicable in the circumstances’, including: (a) the relevance, credibility, and admissibility of the evidence; (b) the materiality of the evidence; (c) the circumstances surrounding the delay in filing the evidence; and (d) whether granting leave would cause prejudice to the opposing party”.
The Court considered that the proposed evidence was relevant, credible and material. The Court further found that there was no prejudice to the respondent as the respondent took no position on the appeal, and that the circumstances surrounding the delay was accorded less weight given the nature of the proposed evidence and the non-participation of the respondent.
A copy of the decision can be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]