This is an appeal of a decision found here.
The Court of Appeal noted that the first issue to be considered was whether a breach of natural justice that may have occurred before the Registrar of Trademarks would have been cured by a proceeding in the Federal Court. The Court of Appeal found no error in the Court’s determination that a breach of notice and the right to be heard by the Registrar can be addressed in an appeal with new evidence under section 56 of the Trade-marksAct. The issue therefore became whether the breach was in fact cured by the appeal. The Court of Appeal held that the argument made in support of the submissions that the breach was not cured was based on a mistaken belief that the burden of proof is lower before the Registrar as compared to the Court. The Court of Appeal also agreed with the Court regarding the evidence of use and the reliance on foreign correspondence. The appeal was dismissed.