This was an appeal of the decision of the Trademarks Opposition Board (TMOB), refusing the Applicant's opposition to a trademark application filed for the Respondent's "Marché & Wave" Design. On appeal, the Applicant only took issue with the TMOB's rejection of the "not distinctive" ground of opposition under section 2 of the Trade-marks Act.
The Court stated that the standard of review was reasonableness, notwithstanding the additional affidavits submitted by the Applicant. The new evidence was found to be merely repetitive or supplementary, and would not have materially affected the TMOB's findings of fact or the exercise of its discretion with respect to the "not distinctiveness" ground of opposition.
The Court then pointed out that the TMOB's decision focussed primarily on whether the Applicant had met its initial evidentiary burden to support the "not distinctive" ground of opposition, and not whether the Respondent had established that the Mark was distinctive within the meaning of the Trade-marks Act. On this basis, the Court concluded that the TMOB's finding that the Respondent had failed to show that the term "market" or "marché" lacked distinctiveness was reasonable.
While the TMOB found that there were numerous businesses that use the word "market" or "marché" in their name and that the term was the dominant portion of the Mark, the majority of these businesses were not restaurants. Therefore, the Court found that it was reasonable for the Board to conclude that the Applicant's evidence was not sufficient to show that the Mark lacked distinctiveness such that it was incapable of functioning as a source identifier for the Respondent's services.