Saint Honore Cake Shop Limited v. Cheung's Bakery Products Ltd., 2015 FCA 12

We previously summarized a decision (2013 FC 935) where the Federal Court had refused to allow the registration of applications for marks containing Chinese characters because they would be confusing to a prior mark. The fact that the new marks were in Chinese did not change the result because a substantial portion of the actual consumers would be able to read and understand Chinese. The Federal Court of Appeal has dismissed the appeal from that decision. 

In the earlier decision, one of the originally filed expert affidavits was not found to be admissible because it was missing the signed Code of Conduct. A subsequently signed Code of Conduct was not found to have cured the defect. The Court of Appeal disagreed with this interpretation of Rule 52.2 of the Federal Courts Rules

The Court of Appeal found that while some or all of the expert’s affidavit can be excluded for failing to comply with the Code of Conduct, the same is not true for omitting to comply with the particular content requirements of an expert affidavit set forth by Rule 52.2(1). The Court of Appeal held there was no evidence that Dr. Chen had failed to comply with the Code of Conduct. Rather the only evidence before the judge was the inadvertent absence of the certificate acknowledging that Dr. Chen had read the Code of Conduct for Expert Witnesses when the Chen affidavit was sworn on November 25, 2011. The addition of the later sworn certificate cured the defect, and there was no evidence on record that the delay in providing the required certificate caused any prejudice to the respondent. 

However, even after considering this evidence, the Court of Appeal did not find the affidavit to be so significant to have materially affected the decisions of the board. As a result, the appeal was dismissed.