Evolving Jurisprudence On Filing New Evidence In Trademark Appeals: Decision # 2

On June 25, 2026, the Federal Court (the Court) released its decision in Constellation Brands U.S. Operations, Inc. v Vineyard House, LLC, 2026 FC 866, dismissing Constellation Brands U.S. Operations, Inc.’s (Constellation) motion for leave to file additional evidence in its appeal from a decision of the Trademarks Opposition Board (TMOB). The Court held that the proposed evidence did not meet the new leave test under subsection 56(5) of the Trademarks Act, as set out in Products Unlimited, Inc. v Five Seasons Comfort Limited, 2026 FC 48 (as previously reported by the E-TIPS^® Newsletter here).

The dispute began when The Vineyard House, LLC (TVH) applied to register the trademarks CRABB’S HALTER VALLEY and H.W. CRABB. Constellation opposed the applications, alleging that TVH was attempting to promote a non-existent historical connection to H.W. Crabb and the To Kalon Vineyard—a connection Constellation said only it was entitled to claim. The TMOB dismissed the oppositions, finding that Constellation had not met its evidentiary burden on the facts underlying its grounds of opposition.

On appeal, Constellation sought to introduce an affidavit from an employee of its Canadian distributor. The affidavit addressed Canadian sales, marketing activities, and media promotion, and was intended to fill the evidentiary gaps identified by the TMOB. Constellation also asked the Court to designate portions of the affidavit and several exhibits as confidential.

The Court first refused the confidentiality request, finding that Constellation had not met the applicable standard. Turning to the motion for leave, the Court applied the four-factor framework set out in Products Unlimited, considering: (1) the relevance, credibility, and admissibility of evidence; (2) the materiality of the evidence; (3) the circumstances surrounding the delay in filing the evidence; and (4) the prejudice to the opposing party.

Although Constellation had filed its evidence when the former subsection 56(5) permitted parties to file new evidence on appeal as of right, the Court found that this did not adequately explain the delay and noted that Justice McHaffie’s comments in Products Unlimited were not intended as a “free pass” for litigants who filed their evidence under the old subsection 56(5). Thus, while not determinative, this factor weighed against granting leave. The Court also found that parts of the affidavit and exhibits were inadmissible opinion evidence, irrelevant, or immaterial. The Court was not persuaded that delaying registration of the TVH marks would prejudice TVH, because delay is inherent in the opposition process.

Considering the factors as a whole, the Court concluded that granting leave would not be in the interests of justice. Constellation’s motion to file additional evidence was therefore dismissed.

Summary By: Claire Bettio