Servicemaster further appeals their previously dismissed judicial review of the TMOB, who refused to register their applications for SERVICEMASTER CLEAN and SERVICEMASTER CLEAN AND DESIGN (2014 FC 440, previously summarized here). The TMOB found that the applications created a likelihood of confusion as of the date of its first use, October 1997. As filed, the application included building repair management and disaster restoration services among the wares and services.
The respondent has used the mark MASTERCLEAN since at least 1971, and has used the mark in association with restoration, renovation and cleaning services since at least 1980.
The TMOB had excluded the appellant’s evidence showing no confusion because it came after 1997. This was upheld by the trial judge.
The Court of Appeal affirmed the decision. While evidence post-dating the relevant date might be relevant to the issue of confusion, it was held that it was not unreasonable for the trial judge to exclude it.