The Trade-marks Opposition Board (TMOB) previously refused to register Cathay Pacific’s application to register five marks, including ASIA MILES. The TMOB found that Cathay Pacific had not established use in Canada and there was a likelihood of confusion with the existing AIR MILES mark. The Federal Court has found that decision unreasonable, and has returned it to the TMOB for reconsideration.
The Court held that the Board erred in failing to credit Cathay Pacific with use of its mark in Canada due to an unclear licensing arrangement. Even in the absence of a written licence the Court found there was sufficient evidence for the TMOB to conclude that Cathay Pacific had “direct or indirect control of the character or quality” of the mark’s use. The Court felt that this finding then led to additional errors that should be reconsidered by a new panel of the TMOB.