Trademark owners who successfully defend their trademark registrations from expungement may still be permitted to file additional evidence when there is an appeal to the Federal Court, particularly where the appeal is based on flaws in their previously-filed evidence.

Canadian National Railway Company v. Cambium Networks, Ltd. is a decision on a motion for leave to file additional evidence. In the underlying Trademarks Opposition Board decision, the Board had found that the evidence filed by Cambium Networks, Ltd. (Cambium) showed use of the mark CNMAESTRO, despite there being flaws in its evidence. Canadian National Railway Company (CNR) appealed the decision on the basis that the Board erred in accepting the flawed evidence.

As now required by section 56(5) of the Trademarks Act, Cambium brought a motion to file a new affidavit in the appeal. CNR argued that leave to file additional evidence should only be granted to an unsuccessful trademark owner or to an appellant. The Federal Court did not accept this premise and went on to hold that leave should be granted having regard to the factors previously identified by the court in Products Unlimited, Inc v Five Seasons Comfort Limited, namely, the relevance, credibility, and admissibility of the evidence; the materiality of the evidence; the circumstances surrounding the delay; and the prejudice to the opposing party.

The full decision is reported here.