This was an appeal from a decision of the Registrar of Trademarks’ decision to decline Philip Morris’ application to register the proposed trademark “FLIP-TOP”. The Court dismissed the appeal.
The issue on appeal was whether the Board erred in finding that the proposed mark could not be registered because it was not distinctive. The Federal Court refused to consider the issue of whether the proposed mark was clearly descriptive, because the Board had considered the issue but had expressly refused to make a finding.
Both parties filed new evidence, however the Court held it would not have materially affected the Board’s decision. Thus, the Court assessed the decision using the reasonableness standard. The Court held it was open to the Board to conclude that the term “FLIP TOP” in association with tobacco products was not distinctive. Thus, it was reasonable, and the Federal Court dismissed the appeal.