On April 2, 2019, in Seara Alimentos Ltd v Amira Enterprises Inc, 2019 FCA 63, the Federal Court of Appeal (FCA) dismissed an appeal by Seara from a decision of the Federal Court refusing registration of Seara’s trademarks. 

Seara sought registration of the SEARA and SEARA & Design marks (collectively, Marks) in Canada in association with various food products.  Amira opposed Seara’s applications, alleging that the Marks were confusing with its own registered mark, SERA, for Turkish food products.  The Trademarks Opposition Board (TMOB) agreed with Amira and found that the Marks were not registrable (2016 TMOB 167 and 2016 TMOB 168).

Seara appealed the TMOB’s decisions.  Before the Federal Court, Seara submitted two additional affidavits and annexed exhibits. The Federal Court held that the new evidence was not material and refused to admit it.  Accordingly, the Federal Court found that there was no basis for a de novo review and found the TMOB’s decisions to be reasonable based on the record (2018 FC 351 and 2018 FC 350).

On appeal to the FCA, the FCA found that the Federal Court incorrectly applied the materiality test for admitting new evidence.  The FCA found that the Federal Court was under the impression that, in order to be material, the new evidence should necessarily bring about a different outcome. However, the FCA found that this standard was too high.  The new evidence must simply “have had a bearing on a finding of fact or the exercise of discretion of the TMOB”. 

The FCA proceeded to consider the likelihood of confusion in light of the new evidence.  Since Seara’s new evidence only addressed one food product associated with the Marks, the FCA found that Seara had not established that confusion was not likely with all of the goods listed in its applications and dismissed the appeal.

Summary By: Michelle Noonan

E-TIPS® ISSUE

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