Intellectual Property: The Interest of Justice Applied

Trademarks -The Interest of Justice Applied

In a previous article, we discussed the requirement that parties obtain leave before filing additional evidence on an appeal from the Registrar of Trademarks to the Federal Court. https://www.johnmckeownblog.com/post/federal-court-clarifies-leave-requirement-for-new-evidence-in-trademark-appeals The Federal Court has now applied the same test to refuse leave.

The Test for Filing New Evidence

In one of the first decisions to consider this requirement, the Court concluded that a more flexible approach to leave was warranted in this context than the strict application of the usual test for filing fresh evidence on appeal. At the same time, the underlying principles—including the interests of justice and the importance of finality, order, and efficiency—apply equally to trademark litigation.

In summary, when assessing a request to file additional evidence on appeal, the Court should determine whether the interests of justice favour granting leave, having regard to all relevant factors, including:

(a) the relevance, credibility, and admissibility of the evidence;

(b) the materiality of the evidence;

(c) the circumstances surrounding the delay in filing the evidence; and

(d) whether granting leave would cause prejudice to the opposing party.

Since that decision, this test has been applied to grant leave in many cases. The Court has now applied the same test to refuse leave.

The Facts

The Registrar of Trademarks expunged the Applicant’s trademark for failure to provide evidence of use. The Applicant appealed and sought leave to file additional evidence, on the grounds that it had not received the section 45 notice or, alternatively, that the notice must have been misplaced. The lead affidavit relied on by the Applicant stated that the affiant did not receive the notice and that she only became aware of the expungement of the mark when she received the decision.  

As the matter proceeded, it became clear that the notice had been delivered by Purolator courier to the Applicant’s address, where its affiant resided, and had been signed for by her. The Applicant also received a letter from the Respondent’s counsel referring to the notice and advising that evidence had to be filed or the mark would be expunged. The affiant had years of experience dealing with trademarks.

The Decision: Enteractive Media Inc. v. Gamechanger Media, Inc. 2026 FC 843

The Court rejected the argument that the leave factors should apply differently on an appeal from an opposition proceeding than on an appeal from a section 45 proceeding. The subsection draws no such distinction, and previous decisions have applied the same factors in appeals from section 45 proceedings.

The requirement to obtain leave before filing new evidence means that a trademark owner must explain why admitting the evidence would serve the overall interests of justice. Although materiality and probative value remain relevant, they are no longer the only considerations.

The Respondent was an interested party and claimed that it would be prejudiced if the new evidence were permitted on appeal. The Court treated this prejudice as a relevant factor.

The overall interests of justice governed the decision. On the facts, the Applicant’s conduct did not justify granting leave to file the additional evidence.