Advance Magazine Publishers Inc. v. Farleyco Marketing Inc.
Appeal dismissed because the appellant failed to demonstrate that the application judge erred: there was no factual foundation that licensing expanded the GLAMOUR mark and the affidavit evidence did not establish expansion, and it was not shown that the judge's subsection 16(3) conclusion depended on evidence...
Source-derived case information.
- Citation
- 2009 FCA 348
- Parties
- Appellant: Advance Magazine Publishers Inc.; Respondent: Farleyco Marketing Inc.
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 30 November 2009
- Procedural Posture
- Appeal (federal Court of Appeal) / Hearing and Judgment (reasons Delivered From the Bench)
- Outcome
- Appeal dismissed with costs.
- Legal Topics
- Confusion, Licensing and Use of Trademark, Applicable Date Under S.16(3), Evidentiary Timing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Advance Magazine Publishers Inc.
Appellant
Farleyco Marketing Inc.
Respondent
Procedural Posture
Appeal (federal Court of Appeal) / Hearing and Judgment (reasons Delivered From the Bench)
Legal Issues
- 1 Whether licensing of the GLAMOUR mark to third parties expands the scope of the mark for confusion analysis
- 2 Whether the application judge relied on evidence post-dating the applicable date for subsection 16(3) of the Trade-marks Act
- 3 Whether the application judge erred in concluding there was no confusion
Ratio Decidendi
Appeal dismissed because the appellant failed to demonstrate that the application judge erred: there was no factual foundation that licensing expanded the GLAMOUR mark and the affidavit evidence did not establish expansion, and it was not shown that the judge's subsection 16(3) conclusion depended on evidence post-dating December 16, 2003.
Court Disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs.
Full Case Text
Judgment text and source record
1 paragraphs
Advance Magazine Publishers Inc. v. Farleyco Marketing Inc. Court (s) Database Federal Court of Appeal Decisions Date 2009-11-30 Neutral citation 2009 FCA 348 File numbers A-132-09 Decision Content Date: 20091130 Docket: A-132-09 Citation: 2009 FCA 348 CORAM: BLAIS C.J. NOËL J.A. LAYDEN-STEVENSON J.A. BETWEEN: ADVANCE MAGAZINE PUBLISHERS INC. Appellant and FARLEYCO MARKETING INC. Respondent Heard at Toronto, Ontario, on November 30, 2009. Judgment delivered from the Bench at Toronto, Ontario, on November 30, 2009. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20091130 Docket: A-132-09 Citation: 2009 FCA 348 CORAM: BLAIS C.J. NOËL J.A. LAYDEN-STEVENSON J.A. BETWEEN: ADVANCE MAGAZINE PUBLISHERS INC. Appellant and FARLEYCO MARKETING INC. Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on November 30, 2009) NOËL J.A. [1] We are unable to conclude that Russell J. committed any of the errors alleged by the appellant. With respect to the issue of confusion, we agree with the application judge that there is no factual foundation for the proposition that the appellant has expanded the scope of its GLAMOUR mark by having licensed this mark to third parties (reasons of the application judge, paragraph 114). [2] While the affidavit Susan Goodall does establish that third parties use the appellant’s magazine and website to advertise their own products, it does not go beyond this. [3] As to the issue of the applicable date in relation to subsection 16(3) of the Trade-mark Act, R.S.C. 1985, c. t-13, it has not been demonstrated that the application judge’s conclusion depended on evidence which post-dates December 16, 2003. [4] The appeal will be dismissed with costs. “Marc Noël” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-132-09 (AN APPEAL FROM THE ORDER OF THE HONOURABLE MR. JUSTICE RUSSELL OF THE FEDERAL COURT, DATED FEBRUARY 12, 2009, FROM COURT FILE DOCKET NO. T-1490-07) STYLE OF CAUSE: ADVANCE MAGAZINE PUBLISHERS INC. v. FARLEYCO MARKETING INC. PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: NOVEMBER 30, 2009 REASONS FOR JUDGMENT OF THE COURT BY: (BLAIS C.J., NOËL & LAYDEN-STEVENSON JJ.A.) DELIVERED FROM THE BENCH BY: NOËL J.A. APPEARANCES: Kenneth D. McKay FOR THE APPELLANT Brian W. Gray Cynthia D. Mason Amy Grenon FOR THE RESPONDENT SOLICITORS OF RECORD: SIM, LOWMAN, ASHTON & McKAY LLP Barristers & Solicitors Toronto, Ontario FOR THE APPELLANT OGILVY RENAULT LLP Toronto, Ontario FOR THE RESPONDENT