Canada Bread Company Limited v. La Tortilla Factory, 2016 FC 704

Canada Bread Company appealed a decision of the TMOB that rejected its opposition to two trademark applications, one for SMART & DELICIOUS WRAPS, the other for SMART & DELICIOUS TORTILLAS, both in association with “tortillas and sandwich wraps”. The appeal has been dismissed for mootness.

La Tortilla Factory wrote to the Court to indicate that it had withdrawn the trademark applications without prejudice, and took the position that the matter was now moot. La Tortilla Factory did not appear at the hearing.

The Court found that the appeal was moot, despite Canada Bread's argument that there are no statutory provisions in theTrade-marks Act which provide for the withdrawal of a trademark application once it has been filed. Canada Bread further argued that the TMOB was functus officio and only the Federal Court had the authority to give effect to the withdrawal of the trademark applications.

Following prior jurisprudence, the Court found that where there is no longer an application for the trademark that gave rise to the litigation, there is no longer any source of dispute and the appeal is moot. The Court was unwilling to side with the argument that an application can never be withdrawn from the registration process, notwithstanding the intentions of the parties.