In LendingTree, LLC v. Lending Tree Corp., 2006 FC 373, an application for judicial review of the Registrar's decision to accept an amendment that changed the applicant's name from "Lending Tree Corp" to "Alex Haditaghi doing business as Lending Tree Corp" was refused.
LendingTree, LLC had opposed registration of the applicant's trade mark on the basis of Section 30(b) of the Trade-marks Act, among other grounds, alleging that Lending Tree Corp. could not have used the mark as claimed, given that the company was not in existence as of the date of first use set out in the application.
Lending Tree Corp. filed the affidavit of Alex Haditaghi in support of the requested amendment to the applicant's name. Mr. Haditaghi swore that he had filed the application himself and had erred in omitting his name from the identification of the applicant. The Board issued a notice on behalf of the Registrar accepting the amendment and advising the opponent to seek leave to amend its statement of opposition if it considered this necessary. The opponent chose instead to bring an application for judicial review.
The Federal Court found that the propriety of an amendment made to the name of an applicant, and whether such an amendment changed the identity of the applicant, may be raised by the opponent in opposition proceedings, and the Opposition Board may properly consider such issue. Accordingly, judicial review was not appropriate, since there was an adequate alternative remedy available to the opponent.
Lending Tree, LLC appealed, and the case was heard on February 12, 2007. The Court of Appeal agreed with the Trial Judge. In considering whether the applicant had used the mark, the Opposition Board must necessarily determine whether the amendment to the applicant's name was valid. Accordingly, the Opposition Board had jurisdiction