Failed Appeal of a Judgment Dismissing a Trade-mark Application
Masterpiece Inc. v. Alavida Lifestyles Inc., 2009 FCA 290 (Sexton J.A., Layden-Stevenson J.A., Trudel J.A.)

October 13, 2009

W. Clarke Hunter, Q.C. for the Appellant, Masterpiece Inc.
Scott Miller, Sharon Griffin and Catherine Lemay for the Respondent, Alavida Lifestyles Inc.

This was an appeal of a judgment dismissing the application of the Appellant, Masterpiece Inc., for the expungement of the registered trade-mark “Masterpiece Living” of the respondent, Alavida Lifestyles Inc. The Appellant had applied under Section 18(1)(a) of the Trade-marks Act (the Act) on the ground that the mark was confusing and therefore unregistrable as of the date of registration. The Appellant and the respondent both operated in the retirement residence industry.  

The Appellant argued that the phrase “would be likely” in Section 6(2) of the Act meant that it was likely that confusion would occur in the future. After examining the general context of the Act, reviewing prior case law, and analyzing the French version of the Act, the Court of Appeal disagreed, holding that the phrase “would be likely” means “would be likely at the date of registration”. 

The appeal was dismissed. The Court of Appeal was not persuaded of any palpable and overriding error with respect to the trial judge’s analysis or conclusions. It also found that the fact that the trial judge accepted in part the evidence of an expert witness who may have engaged in side-by-side analysis did not establish that the trial judge used side-by-side analysis as the basis for his decision.

By: Lisa Wong, Heenan Blaikie LLP