Cathay Pacific Airways Limited v. Air Miles International Trading B.V., 2015 FCA 253

The Court of Appeal has not agreed with either party on the appeal of a decision of the Federal Court (2014 FC 549) that was previously summarized the week of June 16, 2014, dealing with the registration of five trademarks, one of which was a word mark ASIA MILES.

The Federal Court decision was set aside for two reasons. First, the Court of Appeal found that the Federal Court erred in law in its treatment of the new evidence tendered pursuant to section 56 of the Trademarks Act. The Federal Court had declined to review the fresh evidence, and the Court of Appeal held that the parties are entitled to have the Federal Court consider, in light of the fresh evidence, whether it should decide the case by way of a fresh hearing on the extended record or, alternately, by way of a review of the Board's decision on the record as it was before the Board.

Second, while purporting to apply the reasonableness standard to the Board's decision, the Federal Court applied the correctness standard instead. The Federal Court had re-weighed the evidence itself and found that there was support for the view it takes of the matter, but a decision is not unreasonable because the evidence would support another conclusion. The question is whether the decision-maker's conclusion falls within the range of acceptable and defensible outcomes, having regard to the facts and the law. The Court of Appeal was not given any reason to believe that the Board's decision was unreasonable, given the record which it had before it, thus the cross appeal was allowed.

The matter has been returned to the Federal Court for redetermination of all issues raised by the appeal by a different Federal Court Judge.