Canadian sustainable-travel company, G.A.P. Adventures Inc. (“G.A.P. Adventures”, now known as G Adventures), has suffered another blow in the latest round of its trade-mark dispute with American retail giant, The Gap, Inc. (“The Gap”).
In the underlying case, The Gap is seeking to prevent G.A.P. Adventures from using the GAP trade-mark in association with inter alia, retail store services. In a prior decision of the case management judge, upheld by the Federal Court (2011 FC 1526), The GAP was granted leave to amend its statement of claim to include online retail store services.
G.A.P. Adventures appealed to the Federal Court of Appeal. In a recent decision (2012 FCA 101), the Federal Court of Appeal denied G.A.P. Adventures leave to file new evidence on the appeal, finding no special circumstances that warranted a departure from the general rule that an appeal should be based on the factual record before the court below.
In the matter under appeal, G.A.P. Adventures argued that the addition of “online retail store services” was not supported by the facts previously pled which mentioned only “retail store services”. The Federal Court disagreed holding that in today’s day and age, the phrase “retail store services” may mean more than merely operating a brick and mortar building from which one sells goods and services. The “services” of a retail store may include online advertising, tweeting, emailing customers and prospective customers, and offering goods and services over the internet. As the amendment would help define the issues between the parties and was supported by facts already pled, the Federal Court found that allowing the amendment would not cause real injustice to G.A.P. Adventures.
While the appeal on the issue of the amendment was scheduled to be heard on April 17, 2012, it was discontinued in the days leading up to the hearing. The hearing in the main action is scheduled for April 30, 2012.