Two of our Canadian team, Michael O’Neill, Partner, and Robert McNaughton, Associate, provided expert commentary in the World Trademark Review (WTR) article on the recent case Products Unlimited Inc v Five Seasons Comfort Limited.
This article follows a landmark decision in the Canadian Federal Court which involved a requirement for parties seeking leave to file additional evidence on appeal of a decision issued by the Trademarks Opposition Board (TMOB). This is a new requirement which was tested for the first time in this case by the Federal Court.
The court’s decision confirmed that parties can no longer assume they will have a second opportunity to supplement the evidentiary record on appeal. It is now more important than ever that parties present a fulsome evidentiary record before the TMOB.
Michael and Robert discussed the implications of this decision with WTR, and the potential impact on future litigants and brands noting that “in future cases, they will need to frontload their evidence, including possibly providing expert or survey evidence, which comes at a significant cost”. They further emphasized that “it will be important to plan early on the nature and extent of evidence to be filed with the TMOB as it will now be more difficult to get a second kick at the evidentiary can”.
You can learn more about the case from Michael and Robert in their article here.
You can read the WTR article here.