Background
Constellation Brands U.S. Operations, Inc., a subsidiary of the international spirits and wine producer, owns the trademarks TO KALON, H.W.C., and HWC—marks originally adopted from the historic H.W. Crabb vineyard in Napa County, California, which Constellation’s predecessor acquired in the 1960s. The Vineyard House, LLC filed two trademark applications in December 2018 for “CRABB’S HALTER VALLEY” and “H.W. CRABB.” Constellation opposed both applications on six grounds: non-distinctiveness, deceptive misdescriptiveness, bad faith, non-entitlement to register, and lack of use or proposed use.
The Trademarks Opposition Board dismissed both oppositions on October 30, 2025, finding Constellation failed to meet its evidentiary burden. The Board determined that Constellation had not demonstrated that its marks had acquired a “significant, substantial” reputation in Canada, and identified deficiencies in Constellation’s evidence regarding Canadian sales, promotional activities, and third-party advertising. Constellation appealed on the grounds of non-distinctiveness, deceptive misdescriptiveness, and non-entitlement to register, while seeking leave to introduce a new affidavit from Eugene Mlynczyk, the National Fine Wine Ambassador for Arterra Wines Canada (Constellation’s exclusive Canadian distributor).
The Court’s Holding
Justice Whyte Nowak dismissed Constellation’s motion for leave to adduce new evidence, applying the test established in Products Unlimited, Inc. v. Five Seasons Comfort Limited, 2026 FC 48. The court considered four factors: relevance and admissibility, materiality, delay, and prejudice. On admissibility, the court found that while evidence establishing Mlynczyk’s credentials as a Master of Wine was relevant, paragraph 28 of his affidavit—which contained opinion evidence about consumer awareness based on his professional experience—was inadmissible as improper opinion from a fact witness.
Most critically, the court found the remaining evidence failed the materiality standard. Sales figures from 2021–2025 were meaningless for opposition grounds with material dates in 2018 and 2021–2022 because they postdated the relevant periods. Evidence of wine events, certification training programs, and promotional activities lacked concrete attendance numbers; references to “dozens” and “several” participants without identifying how many were average consumers (as opposed to industry experts) could not materially assist the Board. Marketing materials and advertising evidence were either dated years after the material dates or suffered the same circulation and reach deficiencies the Board had already identified. The court emphasized that under the amended section 56(5) of the Trademarks Act, simply filling evidentiary gaps identified by the decision-maker is insufficient; new evidence must be “significantly substantial” to potentially alter the outcome.
Key Takeaways
- New evidence on appeal in trademark proceedings must meet strict materiality standards and cannot be admitted merely to fill gaps in the original evidence; the evidence must be substantial, significant, and capable of materially affecting the decision.
- Vague quantification—such as “several,” “dozens,” or “roughly”—without precise numbers of actual consumer purchasers lacks materiality for distinctiveness and reputation assessments.
- Evidence dated after the material date in opposition proceedings cannot reliably establish consumer awareness or reputation as of the relevant date.
- Confidentiality claims for business information must be supported by evidence from those with actual control of the information, not characterizations by external counsel; absent clear confidential markings and obligations, publicly available information may not receive protective orders.
Why It Matters
This decision provides critical guidance on evidentiary standards in Canadian trademark opposition appeals following legislative amendments to section 56(5) of the Trademarks Act that require leave to introduce new evidence. The court’s rigorous application of the materiality test reflects Parliament’s intention to promote efficiency and finality. For trademark practitioners, the decision confirms that evidence cannot be strategically held back for appellate proceedings—the Board hearing is the critical opportunity to present comprehensive, concrete evidence of reputation, sales, and consumer awareness. Generic assertions or expert speculation about consumer perception will not survive appellate scrutiny.
The decision also underscores the importance of precise factual support in trademark proceedings. Practitioners must document and quantify promotional reach with specificity: actual attendance numbers at events, circulation figures for publications, documented sales volumes broken down by relevant periods, and concrete evidence of how information was disseminated to consumers. Delays in producing evidence, particularly marketing materials available at the time of the Board proceeding, weigh against appellate admission. The case serves as a reminder that trademark rights depend on demonstrated reputation among actual consumers on the relevant date—expert opinion and post-hoc rationalization cannot substitute for contemporaneous evidence of market presence.