Rothmans, Benson & Hedges, Inc. v. Imperial Tobacco Products Limited, 2015 FCA 111

Rothmans appeals an earlier order (2014 FC 300) upholding the rejection of its opposition to two trademark applications for an ORANGE PACKAGE DESIGN in association with manufactured products, namely cigarettes.

On appeal, it was made clear that Rothmans was not arguing the registrability of the marks had they been used as described, rather they argued that the applications are not representative of the marks as used. However, this was held to be a new argument on appeal, and so it was not unreasonable for the Board to not consider them. Despite all the arguments made, the Board’s decision was upheld.