A party may not appeal against an order made in its favour
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In See You In - Canadian Athletes Fund Corporation v Canadian Olympic Committee (2008 FCA 124, April 18 2008), the Federal Court of Appeal has dismissed an appeal by See You In - Canadian Athletes Fund Corporation from a decision of the Federal Court in its favour.
In See You In - Canadian Athletes Fund Corporation v Canadian Olympic Committee (2007 FC 406), the Federal Court had granted an application for judicial review of a decision of the registrar of trademarks to publish the words 'See you in Torino', 'See you in Beijing' and 'See you in Vancouver' as official marks of the Canadian Olympic Committee (COC). The publication effectively terminated See You In's application to register these words as trademarks.
Section 9 of the Trademarks Act reads as follows:
"No person may adopt, in connection with a business, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, any badge, crest, emblem or mark adopted and used by any public authority in Canada as an official mark for wares or services."
Surprisingly, while it was successful in preventing COC from publishing its official marks, See You In nonetheless filed an appeal on the grounds that one of its arguments had been rejected - namely, that COC was a licensee of the International Olympic Committee and thus could not register the marks. See You In contended that the Federal Court had erred in its reasons and sought to have this finding reversed.
The Federal Court of Appeal decided not to intervene on the grounds that “a party who has obtained the relief it sought is not normally entitled to appeal against the judge’s reasons”.
COC also filed a cross-appeal to challenge the decision of the Federal Court. It sought to reverse the court’s finding that COC had not “adopted and used” the marks prior to the decision of the registrar to publish them as official marks.
In refusing to grant the cross-appeal, the Federal Court of Appeal relied on the fact that the only relevant evidence of use - namely, the evidence of distribution to the public of pen and flashlight sets with the COC logo and the marks in question - was sufficiently equivocal to conclude that the judge had made no palpable and overriding error in finding that COC had not succeeded in establishing that it had used the marks as required.
Marcel Naud, Léger Robic Richard LLP, Montreal
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