Trademark appeal allowed and new evidence admitted to prove design features were not primarily functional.
The applicant appealed a Trademarks Opposition Board decision refusing registration of its FILTER DESIGN trademark on the ground that its features were dictated primarily by a utilitarian function.
The applicant sought leave to file new evidence under the amended subsection 56(5) of the Trademarks Act.
The Federal Court granted leave, finding the new evidence was material and provided relevant context that clarified statements relied upon by the Board.
Reviewing the matter de novo based on the new evidence, the Court found the positioning and shape of the diamond-shaped apertures were not dictated primarily by a utilitarian function.
The appeal was allowed and the Registrar was directed to register the trademark.
