The Federal Court recently took the unusual step of striking evidence on an interlocutory application, concluding that the affidavit at issue contained irrelevant or hearsay evidence going to controversial issues and that the objecting party would be prejudiced if admissibility was left to the trier of fact.

In The Chamberlain Group v. Lynx Industries Inc., Chamberlain sought to file an affidavit in support of its appeal of two Opposition Board decisions, the Board having rejected its oppositions to the trade-marks LYNXMASTER and LYNXMASTER & Design.  The Affidavit at issue was sworn by Chamberlain’s U.S. counsel and sought to introduce the decision of the U.S. Trademark and Trial Appeal Board (“TTAB”) which allowed Chamberlain’s opposition to LYNXMASTER and was not appealed by Lynx.

In its decision the Federal Court of Canada specifically noted that Chamberlain was seeking to rely on the TTAB decision as evidence of the likelihood of confusion and not simply as a precedent, concluding that, while the TTAB decision might have precedential value in appropriate circumstances, it was clearly irrelevant to the determination of factual issues in the Canadian trademark proceedings.  Moreover, the fact that Lynx did not appeal the TTAB decision was irrelevant and not something Lynx should be required to explain.

The Court was also concerned that the affidavit sought to summarize evidence given by Lynx’s deponent in the TTAB proceedings, although the same deponent filed affidavits in the Canadian opposition proceedings which Chamberlain declined to cross-examine on.

In light of these concerns the Court chose to exclude the affidavit.