Federal Court

Industrial and Intellectual Property

Opposition Board rejected opposition to trademark application

Applicant opposed respondent’s trademark application. Trademarks Opposition Board rejected applicant’s opposition to trademark application by respondent. Board rejected assertion that respondent’s proposed mark was not distinctive. Applicant asserted that Board’s decision was unreasonable because evidence of multiple restaurants using marché or market as part of their name meant that mark could not reasonably be seen as distinctive. Applicant appealed. Application dismissed. Decision was justifiable, transparent, and intelligible, and fell within range of possible, acceptable outcomes that were defensible in respect of facts and law. Board’s decision was principally focused on whether applicant met its initial evidentiary burden to adduce sufficient admissible evidence from which it could reasonably be concluded that facts alleged to support each ground of opposition existed. It was open to and reasonable for Board to conclude that evidence offered by applicant was not sufficient to show that mark lacked distinctiveness such that it was incapable of functioning as source identifier for respondent’s services. Although Board interspersed its distinctiveness analysis with certain aspects of its descriptiveness analysis, it did not render its decision unreasonable when viewed as whole.

Richtree Market Restaurants Inc. v. Mövenpick Holding AG (Sep. 15, 2016, F.C., Keith M. Boswell J., T-1889-15) 270 A.C.W.S. (3d) 838.

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