Opposition Appeal Dismissed Partly Due to Lack of Licensing Evidence
Advance Magazine Publishers Inc. v. Farleyco Marketing Inc., 2009 FCA 348 (Blais C.J., Noël J.A., and Layden-Stevenson J.A.)

November 30, 2009

Kenneth D. McKay for the Appellant, Advance Magazine Publishers Inc. (Advance)
Brian W. Gray, Cynthia D. Mason and Amy Grenon for the Respondent, Farleyco Marketing Inc. (Farleyco)

This was an appeal of a Federal Court decision (2009 FC 153) upholding the Opposition Board’s rejection of Advance’s opposition to Farleyco’s trade-mark application. Farleyco’s application was GHOULISH GLAMOUR for “Halloween cosmetics and eyelash accessories”. Advance’s opposition was based on its GLAMOUR trade-mark registrations for a periodical magazine and related print and electronic wares and services. The TMOB rejected Advance’s opposition, finding that confusion between Advance and Farleyco’s respective marks was unlikely.

The Federal Court of Appeal upheld the Federal Court’s decision, finding there was no factual foundation that Advance had expanded the scope of its GLAMOUR mark through licensing. The appellate decision indicates that Advance also argued on appeal that the Federal Court decision depended on evidence pre-dating the date that Farleyco’s application was filed. The Court of Appeal also rejected that argument. The appeal was dismissed with costs.

By: Lorraine M. Fleck, Hoffer Adler LLP