Trademark Cases

Court of Appeal Dismisses Motions for (1) Leave to Present Evidence on Appeal, and (2) to have the Appeal Book Prepared by the Administrator
Medos Services Corporation Marathon Medical Inc. v. Vlasseros,
2014 FCA 198

Medos Services Corporation Marathon Medical Inc. and Alexander Vlasseros (collectively the “Appellants”) appealed the judgement of the Federal Court upholding the decision of the Registrar of Trademarks to expunge a trademark for non-use. In this proceeding, the Federal Court of Appeal heard two interlocutory motions by the Appellants: (1) a motion for leave to present evidence on appeal; and (2) a motion to have the appeal book prepared by the Administrator.

With respect to the motion for leave to present evidence on appeal, the Court of Appeal held that the general rule is that evidence will not be admitted on appeal unless it could not with due diligence have been presented in the court below, it is credible, and it is practically conclusive of the issues to which it is alleged to relate. Whether or not those conditions are met, the Court of Appeal held that the Court retains a residual discretion to permit evidence to be admitted on appeal if the interests of justice require. However, the Court of Appeal found no basis upon which it could conclude that the evidence met the test for admitting new evidence on appeal. Specifically, the Court of Appeal noted that the Appellants failed to establish that they could not, with due diligence, have discovered the documents in time for the Federal Court hearing. The motion was therefore dismissed with costs.

With respect to the motion to have the appeal book prepared by the Administrator, the Court of Appeal was not satisfied, based on the limited evidence submitted by the Appellants, that the Appellants lacked the skills required to complete the appeal book. The Appellants’ reasons for requesting that the Administrator prepare the appeal books (i.e. reduced resources due to summary vacation holidays, lack of resources and expertise, and the avoidance of delay and error) were not accepted by the Court of Appeal. Therefore, the motion was dismissed with costs. The Court of Appeal did, however, order an extension of time for preparing, serving and filing the appeal book.

Industry News

Following the release of updated Intellectual Property Enforcement Guidelines from the Competition Bureau (here), the Commissioner of Competition recently addressed a conference on Global Antitrust Challenges for the pharmaceutical industry. Commissioner John Pecman discussed the Bureau’s enforcement approach to potentially anti- competitive patent litigation settlement agreements and announced the release of a white paper that provides a Canadian perspective on the issue. A full version of the Commissioner’s remarks can be found here.

CIPO announced that it has signed a Memorandum of Understanding with the European Patent Office to establish a Patent Prosecution Highway pilot based on both nationally filed and PCT work products. The CIPO-EPO pilot will begin in January, 2015.

The government has released the complete text of CETA, the Comprehensive Economic and Trade Agreement, as it stands following the negotiations between Canada and the EU. Section 22 of the Agreement discusses Intellectual Property.

The BLG Life Sciences Group has published LIFESIGNS: Life Sciences Legal Trends in Canada, a Report on Intellectual Property, Litigation, Corporate Commercial legal trends and industry developments in Canada.

Authors

Chantal Saunders 
CSaunders@blg.com
613.369.4783

Adrian J. Howard 
AJHoward@blg.com
613.787.3557

Beverley Moore 
BMoore@blg.com
613.369.4784

Expertise

Intellectual Property
Patents
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Trademarks
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