Cortefiel S.A. v. Gildan Apparel (Canada) LP

Cortefiel S.A. v. Gildan Apparel (Canada) LP
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-11-04
Neutral citation
2014 FCA 255
File numbers
A-404-13
Decision Content
Date: 20141104
Docket: A-404-13
Citation: 2014 FCA 255
CORAM:
NOËL C.J.
GAUTHIER J.A.
BOIVIN J.A.
BETWEEN:
CORTEFIEL, S.A.
Appellant
and
GILDAN APPAREL (CANADA) LP
Respondent
Heard at Montréal, Quebec, on November 4, 2014.
Judgment delivered from the Bench at Montréal, Quebec, on November 4, 2014.
REASONS FOR JUDGMENT OF THE COURT BY:
GAUTHIER J.A.
Date: 20141104
Docket: A-404-13
Citation: 2014 FCA 255
CORAM:
NOËL C.J.
GAUTHIER J.A.
BOIVIN J.A.
BETWEEN:
CORTEFIEL, S.A.
Appellant
and
GILDAN APPAREL (CANADA) LP
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec, on November 4, 2014).
GAUTHIER J.A.
[1] We have not been persuaded that Tremblay-Lamer J. of the Federal Court made a palpable and overriding error or an extricable error of law in concluding that the new evidence filed before her in the appeal pursuant to subsection 56(1) of the Trade-marks Act, R.S.C., 1985, c. T-13 would not have materially affected the decision of the Registrar of Trade-mark (the Opposition Board).
[2] It was thus proper for the judge to apply the reasonableness standard rather than engage in deciding the matter de novo.
[3] We agree with the appellant that the judge should not have relied on an alleged difference between an Examiner’s finding and a Registrar’s finding to conclude that there was no obligation to expressly consider the initial approval or disapproval of the appellant’s application for publication (reasons reported as 2013 FC 1107 at paragraph 37).
[4] That said, the absence of this potentially relevant surrounding circumstance from the Registrar’s confusion analysis is neither sufficient to render its outcome unreasonable in the present case nor the judge’s application of the standard of review improper. We are satisfied that the judge made no error that would justify our intervention.
[5] The appeal will be dismissed with costs.
“Johanne Gauthier”
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
A-404-13
STYLE OF CAUSE:
CORTEFIEL, S.A. v. GILDAN APPAREL (CANADA) LP
PLACE OF HEARING:
Montréal, Quebec
DATE OF HEARING:
November 4, 2014
REASONS FOR JUDGMENT OF THE COURT BY:
NOËL C.J.
GAUTHIER J.A.
BOIVIN J.A.
DELIVERED FROM THE BENCH BY:
GAUTHIER J.A.
APPEARANCES:
Kenneth McKay
For The Appellant
CORTEFIEL, S.A.
Stéphane Richer
For The Respondent
GILDAN APPAREL (CANADA) LP
SOLICITORS OF RECORD:
SIM, LOWMAN, ASHTON & McKAY, LLP
Toronto, Ontario
For The Appellant
CORTEFIEL, S.A.
BORDEN LADNER GERVAIS L.L.P.
Montréal, Quebec
For The Respondent
GILDAN APPAREL (CANADA) LP