On June 25, 2026, the Federal Court (per Whyte Nowak J.) applied its “gate-keeping function” and refused to allow a party to file new evidence on appeal that could have been tendered before the Trademark Opposition Board (“TMOB”). This is yet another reminder that under the current law, parties to trademark opposition proceedings must put their “best foot forward” before the TMOB and should not assume that new evidence will be admitted on appeal even if the new evidence might be material.
Constellation Brands US Operations Inc v The Vineyard House LLC, 2026 FC 866
Subsection 56(5) of the Act
Prior to the April 2025 amendments to subsection 56(5) of the Trademarks Act (the “Act”), parties enjoyed an effectively unfettered ability to file new evidence on appeals of TMOB decisions. The only hurdle they faced was whether the new evidence was “material”; if not, the Court would disregard it. That regime has now been replaced with a leave requirement, fundamentally altering the strategic landscape for trademark opposition and expungement proceedings before the TMOB.
The Products Unlimited Test
In January 2026, McHaffie J. in Products Unlimited interpreted for the first time the leave requirement imposed by amended subsection 56(5). McHaffie J. adopted an approach “that is ultimately directed at the interests of justice, and considers all relevant factors applicable in the circumstances, including:”
- The relevance, credibility, and admissibility of the evidence;
- The materiality of the evidence;
- The circumstances surrounding the delay in filing the evidence; and
- Prejudice to the opposing party.
In Products Unlimited, the Court found that all four factors weighed in favour of granting leave to file new evidence. A more detailed summary of the decision can be found in our earlier article.
Post-Products Unlimited
The Federal Court has applied the Products Unlimited test five times so far in 2026. In each case, the Court applied a disciplined and increasingly exacting approach to the admission of new evidence on appeal.
- In Trademark Building Products Inc v Window World International LLC, 2026 FC 251, the applicants moved to file three new affidavits on appeal of a section 45 expungement proceeding. The Court granted the motion in part, noting issues of relevance and materiality, and accepting an explanation from an affiant as to the applicant’s “technical inaccessibility” to the data in the proposed evidence at the time of the TMOB proceeding.
- In Ecovacs Robotics Co Ltd v American Air Filter Company Inc, 2026 FC 329, the applicants asserted that the new evidence they sought to file was not filed before the TMOB because they had not received the section 45 notice in time. In the absence of contradictory evidence and any opposition from the respondents, the Court accepted this explanation for the delay and granted leave to file the new evidence, after considering all the Products Unlimited factors.
- In Nielsen Consumer LLC v The Toronto Dominion Bank, 2026 FC 549, another section 45 expungement proceeding, the applicants explained that it was simply out of inadvertence that the evidence was not filed before the TMOB. Nevertheless, the Court granted leave to file the evidence upon a consideration of the Products Unlimited factors, finding that it was in the interests of justice to do so. Since all other factors were satisfied, and the leave request was unopposed, the delay factor was given less weight in this particular case.
- In Enteractive Media Inc v Gamechanger Media Inc, 2026 FC 843, the applicants asserted that the reason for delay was that they either did not receive the section 45 notice or it was misplaced. Unlike Ecovacs and Nielsen, this request for leave was opposed by the respondent, who raised issues of credibility, delay and prejudice. Although Furlanetto J. found that the proposed evidence met the relevance and materiality requirements, she found that the applicants’ assertion and evidence that they had not received the section 45 notice was contradicted by other evidence in the record. The Court reiterated McHaffie J.’s statement in Products Unlimited that the principle that litigants must put their “best foot forward” applies before the TMOB. Finding that there was no credible explanation for the appellants’ delay, the Court denied leave to file new evidence in this case.
The fifth case is Constellation Brands.
The Constellation Brands Case
Constellation Brands is the latest decision to apply the Products Unlimited factors.
In this case, the applicant (“Constellation”) opposed two of the respondent’s (“TVH”) trademark applications. The TMOB dismissed both oppositions, finding that Constellation had not met its evidentiary burdens. On appeal to the Federal Court, Constellation sought leave to file new evidence (“Mlynczyk Affidavit”) to fill the evidentiary gaps noted by the TMOB. Constellation also provided an affidavit from its US legal counsel (acting on a related US trademark proceeding) as support for its request for leave.
- Delay
Constellation raised two arguments addressing the delay factor. The Court accepted Constellation’s first argument that some commercially sensitive sales information could not have been filed before the TMOB since confidentiality orders could not be obtained at the time. However, those confidentiality concerns did not extend to all of the new evidence in the Mlynczyk Affidavit, including marketing materials that were attached as exhibits.
Constellation also submitted that it filed its evidence in the opposition proceedings before the April 2025 amendment to subsection 56(5) of the Act, and that it did not know that leave would be required to file additional evidence on appeal. Whyte Nowak J. noted that this legislative transition weighed in favour of granting leave in Products Unlimited. However, this was not intended to give a “free pass” to litigants who intentionally withheld evidence in the TMOB prior to April 2025 but now want to file that evidence on appeal. In Constellation’s case, the legislative transition meant that the delay factor would not be determinative, but the factor still weighed against granting leave.
- Materiality
The Court held that the proposed evidence repeated the same deficiencies found in the initial evidence before the TMOB. The new evidence was imprecise on various critical points, rendering it immaterial to the various grounds of opposition advanced by Constellation. As one example, it was unclear from the proposed evidence whether the newly adduced sales information applied to the relevant periods for various grounds of opposition.
- Other factors
TVH submitted that granting Constellation leave to file the new evidence would cause TVH prejudice by delaying its registration. However, the Court agreed with Constellation that “delay is inherent in the scheme for Oppositions” and therefore prejudice did not factor into the Court’s decision in this case.
Finally, the Court also excluded portions of the proposed Mlynczyk Affidavit because they constituted impermissible opinion evidence from a non-expert witness. This is a useful reminder to litigants that the proposed new evidence must also meet established evidentiary rules.
Key Takeaways
- It is now incumbent on parties to put their “best foot forward” when filing evidence in a TMOB proceeding.
- The Court will rigorously apply the Products Unlimited factors when determining whether to grant leave under subsection 56(5).
- The “delay in filing the evidence” factor will sometimes be determinative. The Court will take a fact-specific approach to deciding how much weight to put on the delay factor. In any case, the requesting party must provide a reasonable and credible explanation why the evidence was not filed earlier before the TMOB.
- The Court will carefully scrutinize the relevance and materiality of the newly proposed evidence in carrying out its gate-keeping role under subsection 56(5). Parties seeking leave should not overlook possible ambiguities in key details of the new evidence (e.g., dates of sales/marketing materials, consumer numbers).
- The cases so far suggest that the Court may be more forgiving in admitting new evidence in section 45 expungement proceedings, especially where the leave application is not opposed.