Hortilux Schreder B.V. v. Iwasaki Electric Co. Ltd.

A member of the Trade-marks Opposition Board (Member) rejected the opposition by Hortilux to the registration by Iwasaki of a trade-mark. Hortilux appealed the decision of the Member to the Federal Court, and filed additional evidence on appeal. The Court found that the Member erred in finding that the Respondent, Iwasaki, had established its claimed date of first use, and erred in finding that the evidence submitted by the Appellant did not establish prior use by the Appellant. As a result, the Court found that the Appellant established use of its trade-mark prior to the Respondent’s alleged date of first use. The Court further found that the trade-mark applied for was confusing with the Appellant’s trade-mark as of the Respondent’s date of first use and, accordingly, refused the application for a trade-mark.