On August 19, 2026, the Federal Court (the Court) released its decision in PKF Trade Mark Limited v PKF Chambers Inc, 2026 FC 1072, granting PKF Trade Mark Limited (the Applicant) leave to file new evidence. The underlying proceeding was an appeal from a decision by the Trademarks Opposition Board (the Board) expunging the Applicant’s trademark (the Mark) after finding that the Applicant had failed to demonstrate use of the Mark during the relevant period.
The Court applied the test set out in Products Unlimited, Inc. v Five Seasons Comfort Limited (Product Unlimited) (as previously reported by the E-TIPS® Newsletter here) for granting leave to adduce new evidence under subsection 56(5) of the Trademarks Act.
The Applicant sought leave to file new evidence but did not provide evidence explaining why the evidence had not been presented to the Board. Instead, the Applicant relied on the Court’s holding in Constellation Brands U.S. Operations, Inc v Vineyard House, LLC, 2026 FC 866 (as previously reported by the E-TIPS® Newsletter here) arguing that it should be afforded leniency due to the transition from the old provision, which allowed new evidence to be filed on appeal as of right, to the new provision, which requires the court to play a stricter gatekeeping role.
The Court did not find the delay factor determinative and held that the interests of justice favour some latitude towards the Applicant. The Court reasoned that the Applicant filed its evidence and made its submissions to the Board before subsection 56(5) came into force and before Products Unlimited established the test for leave.
The Court also considered the prejudice alleged by PKF Chambers Inc. due to the delay but held that it did not factor into the decision, noting that delay is inherent in the scheme under the Trademarks Act and in litigation generally.
Finally, the Court weighed the factors of relevance and materiality, which favoured granting leave, against the factor of delay, which favoured denying leave, and found that it was in the interests of justice that the Applicant’s leave to file the new evidence be granted.
Accordingly, the Court granted the Applicant’s motion.
Summary By: Uday Bahal
E-TIPS® ISSUE
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