Before a Canadian trademark is registered, it must be advertised and exposed to third-party opposition before the Canadian Trademarks Opposition Board (“TMOB”). Procedural complexity has triggered criticism of Canadian trademark opposition proceedings as formalistic. For example, appeals from the TMOB to the Federal Court are available as of right and it has always been a peculiar feature of Canadian trademark oppositions that the parties get an evidentiary “do over” on appeal. This practice of dragging out litigation by withholding evidence at the first instance is changing. If material new evidence is adduced on appeal from a decision of the TMOB, the standard of review is higher – correctness – rather than the more deferential standard of reasonableness applied in cases where there is no new evidence proffered on appeal. This discrepancy in the standard of review has caused many…
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