Maple Leaf Foods Inc. v. Consorzio Del Prosciutto Di Parma et al., 2010 FCA 247

• Judge: Nadon, Sexton and Sharlow, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 27, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FCA 247;(2010), 407 N.R. 199 (FCA)

Maple Leaf Foods v. Consorzio Del Prosciutto (2010), 407 N.R. 199 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. OC.011

Maple Leaf Foods Inc. (appellant) v. Consorzio Del Prosciutto Di Parma (respondent)

(A-460-09; 2010 FCA 247)

Indexed As: Maple Leaf Foods Inc. v. Consorzio Del Prosciutto Di Parma et al.

Federal Court of Appeal

Nadon, Sexton and Sharlow, JJ.A.

September 27, 2010.

Summary:

Maple Leaf Foods Inc. produced a variety of food products, including ham, and owned trademarks for those products, including "PARMA". In 1998, a public notice was given by the Registrar of Trademarks dealing with Consorzio Del Prosciutto Di Parma's adoption and use of the PARMA Ducal Crown Design mark as an official mark. Maple Leaf appealed the notice, asserting that Consorzio was not a public authority under the Trade-marks Act. O'Keefe, J., held that Maple Leaf did not have standing to appeal the notice. However, O'Keefe, J., did not foreclose the possibility of allowing Maple Leaf to apply for an extension of time to file a judicial review application or to make a motion to convert its appeal to an application for judicial review. Maple Leaf moved for an order granting it leave to convert its appeal into a judicial review and for an extension of time to file a Notice of Application. Maple Leaf also appealed O'Keefe, J.'s decision. Maple Leaf eventually discontinued its appeal. Its motion was never brought for a hearing. In 2008, Maple Leaf applied for judicial review of the Notice.

The Federal Court, in a decision reported at 357 F.T.R. 293, dismissed the application. Maple Leaf appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limitation period - Maple Leaf Foods Inc. produced a variety of food products, including ham, and owned trademarks for those products, including "PARMA" - In 1998, a public notice was given by the Registrar of Trademarks dealing with Consorzio Del Prosciutto Di Parma's adoption and use of the PARMA Ducal Crown Design mark as an official mark - Maple Leaf appealed the notice, asserting that Consorzio was not a public authority under the Trade-marks Act - O'Keefe, J., held that Maple Leaf did not have standing to appeal the notice - However, O'Keefe, J., did not foreclose the possibility of allowing Maple Leaf to apply for an extension of time to file a judicial review application or to make a motion to convert its appeal to an application for judicial review - Maple Leaf moved for an order granting it leave to convert its appeal into a judicial review and for an extension of time to file a Notice of Application - Maple Leaf also appealed O'Keefe, J.'s decision - Maple Leaf eventually discontinued its appeal - Its motion was never brought for a hearing - In 2008, Maple Leaf applied for judicial review of the Notice - The application judge dismissed the application as being time barred - Under ss. 18.1(1) and 18.1(2) of the Federal Courts Act, Maple Leaf had 30 days from the giving of the Notice to seek judicial review - Failing that, it was obliged to seek an extension of time - It had not done so - The Federal Court of Appeal dismissed Maple Leaf’s appeal.

Trademarks, Names and Designs - Topic 4414

Trademarks - Practice - Appeals or judicial review - [See Administrative Law - Topic 3342 ].

Cases Noticed:

Canada Post Corp. v. United States Postal Service, [2006] 3 F.C.R. 28; 284 F.T.R. 221; 2005 FC 1630, affd. (2007), 358 N.R. 154; 2007 FCA 10, refd to. [para. 2].

Counsel:

James Buchan, for the appellant;

Brian D. Edmonds and Daniel Glover, for the respondent.

Solicitors of Record:

Gowling LaFleur Henderson LLP, Toronto, Ontario, for the appellant;

McCarthy Tetrault LLP, Toronto, Ontario, for the respondent.

This appeal was heard on September 27, 2010, at Toronto, Ontario, by Nadon, Sexton and Sharlow, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered from the bench by Sharlow, J.A., on September 27, 2010.