Section 57 Applications "Drive" Amendments To The Trademarks Register

In the recent decision of the Federal Court of Appeal (“FCA”), Hutchingame Growth Capital Corp v Dayton Boot Co Enterprises Ltd. et al, the FCA clarified the importance of initiating an appeal of a Trademarks Office decision under the appropriate “jurisdictional vehicle”.

The Facts

Dayton Enterprises was a bootmaker who registered its DAYTON trademark in 2011. An individual named Mr. Risk offered to invest in the DAYTON brand through his firm, Red Cat. In May 2012, Dayton Enterprises and Red Cat entered into an agreement the Federal Court described as “a poorly drafted Asset Acquisition Agreement”, pursuant to which assets including the DAYTON trademark would be transferred to Red Cat for financial consideration. The Agreement was unclear when the transfer of title would occur, and used prospective language (e.g., “will acquire”, “will be granted”).