Centre Ice Ltd. v. National Hockey League
95-T-52
Nadon J.
7/9/95
12 pp.
Motion under Trade-marks Act, s. 56 for leave to appeal decision of Trade Marks Opposition Board notwithstanding expiry of two-month statutory period for appeal-Three concurrent proceedings with respect to similar trade mark applications, two of which concerning application to register trade marks "Center Ice", "Centre Ice"-Although filed affidavit with Board, Centre Ice defaulted in serving NHL by one day-Attempted to file affidavit by partially following procedures for submitting additional evidence-Opposition Board rejecting Centre Ice's opposition to NHL's application for trade mark "Center Ice" for use in association with clothing for failing to adduce any evidence supporting allegations of fact-On December 5, 1994 Centre Ice requested Board declare decision nullity as not having regard to Jones affidavit-On June 16, 1995 Board refusing request-Present motion filed August 28, 1995-S. 56 providing for appeal within two months from date on which notice of decision dispatched-Factors guiding determination of whether retroactive extension of time to appeal decision of Registrar of Trade Marks should be granted: (1) Appeal arguable-Issues raised in applications similar-Jones affidavit filed in Centre Ice trade mark application, passing off action-Registrar not having Jones' evidence before him, although filed day before-(2) No prejudice to respondent if extension granted, since already served with affidavit evidence in other application-(3) Genuine intention to appeal as of January 30, 1995-(4) Appellant must establish good reason for entire delay-Although notice of appeal due August 16, 1995, Centre Ice not filing any appeal, but filing present motion on August 28, 1995 instead-No explanation why not filing Notice of Appeal within two months of dispatch of June 16, 1995 letter-Motion dismissed-Trade-marks Act, R.S.C., 1985, c. T-13, s. 56(1)-Federal Court Rules, C.R.C., c. 663, R. 1308.