Saint Honore Cake Shop Limited v. Cheung's Bakery Products Ltd, 2015 FCA 12 (Boivin, J.A.)
January 20, 2015
Kenneth McKay for Saint Honore Cake Shop Limited (Appellant)
Christopher Wilson and Kwan Loh for Cheung's Bakery Products Ltd (Respondent)
The Trade-marks Opposition Board (the Board) refused to register two applications of the Appellant on grounds relating to likelihood of confusion between the Appellant’s marks and registered marks of the Respondent. Among other things, the Board found that there was a direct overlap of the parties’ food products and that the only difference in pronunciation of Chinese characters comprising the parties’ marks was the presence of a word found in the Appellant’s marks but not in the Respondent’s marks.
The Judge of the Federal Court (the Judge) dismissed the Appellant’s appeal. The Appellant had submitted new affidavit evidence, which focused on the fluency and literacy of Chinese-Canadians, and which purportedly supported a position of lack of confusion. The Judge determined that the affidavit was inadmissible due to the expert’s “incurable failure” to provide the Certificate of the Code of Conduct for Expert Witnesses (the Code) pursuant to Rule 52.2(1)(c) of the Federal Courts Rules. The Judge further held that, even if admissible, the affidavit should be given little weight and evidence provided therein would not have materially affected the Board’s decision.
The Federal Court of Appeal (the FCA) found that the Judge erred in determining the affidavit to be inadmissible. There was no evidence that the expert had failed to comply with the Code; rather, there was only evidence of the absence of the certificate acknowledging that the expert had read the Code. This particular absence was later cured by a second affidavit subsequently filed by the expert. In general, lack of compliance with the particular content requirements of Rule 52.2(1)(c) should not be conflated with a failure to comply with the Code pursuant to Rule 52.2(2). Despite the Judge’s error in deeming the affidavit inadmissible, the FCA agreed with the Judge that the affidavit should be given little weight and would not have materially changed the decision of the Board. Thus the appeal was dismissed with costs.
By: Philip Goldbach, AbCelex Technologies Inc.