The Trade-marks Opposition Board (TMOB) allowed in part the application of The Devil’s Martini to register the trade-mark THE DEVIL’S MARTINI in respect of specific goods. Bacardi appealed the decision of the TMOB. The Devil’s Martini brought a motion for leave to cross-examine on affidavits that had been filed by Bacardi in the proceeding before the TMOB. The Prothonotary dismissed the motion based on his interpretation of an agreement between counsel deferring cross-examinations. However, the Prothonotary allowed a request for an extension of time by The Devil’s Martini to file additional evidence in Court. No additional evidence was filed.
The Court dismissed the appeal of the Prothonotary’s decision. The Court of Appeal considered that the Court applied the correct standard of review and dismissed the appeal. The Court of Appeal, however, found that the Court erred in his consideration of the appeal relating to a further extension of time to file evidence, and the Court of Appeal allowed the appeal relating to the extension of time, and set a date for the filing of evidence in the Court by The Devil’s Martini.