In a recent decision, the Federal Court dismissed a motion by Bonafide Health, LLC that sought to introduce new evidence and to conduct a cross-examination in its appeal of a Trademark Opposition Board (the “Board”) decision in relation to the trademark BONAFIDE & Design.

The Board had rejected an opposition by Bonafide Health, LLC to an application filed by Bonafide Health & Drugs Limited for the trademark BONAFIDE & Design.  In dismissing the opposition, the Board noted that Bonafide Health, LLC did not file sufficient evidence to establish prior use of their BONAFIDE and BONAFIDE HEALTH trademarks and trade names or to establish a reputation in Canada.

The issue before the Court was whether Bonafide Health, LLC could cross-examine an affiant on an affidavit filed before the Board when the affiant was not cross-examined during the opposition proceeding. The Court held that parties cannot use an appeal to obtain a second opportunity to cross-examine on affidavits that could have been tested earlier.

The Court also rejected Bonafide Health, LLC’s request for leave to file two new affidavits intended to strengthen their claims of use and reputation in Canada.  The Court found that the proposed evidence would not have materially affected the Board’s decision.

This decision reinforces two important principles for trademark opposition cases: parties should file their best evidence during opposition proceedings in front of the Board, including taking steps to cross-examine affiants if appropriate, and additional evidence on appeal will only be admitted if it would materially affect the outcome of the Board’s decision.

The motion was dismissed and costs were awarded to Bonafide Health & Drugs Limited.