If It’s Dead; It Stays Dead: Federal Court Confirms No Jurisdiction Of TMOB To Revisit Final Decision Deeming Trademark Application Abandoned

On February 18, 2025, the Federal Court (the Court) issued its decision in Chwaja v. 0710674 BC Ltd. (Cottonmouth), 2025 FC 312, which upheld a Trademark Opposition Board (TMOB) decision that declared a trademark application for the mark “Cotton Mouth” (the Application) abandoned; and noted that the TMOB lacked jurisdiction to revisit its own decisions once final.

The Application was filed on March 31, 2017, and later opposed by 0710674 BC Ltd. DBA CottonMouth (the Respondent). On October 3, 2022, the TMOB sent a letter to the applicant (Mr. Chwaja) detailing the opposition, which triggered Mr. Chwaja’s obligation to file and serve a counter statement by December 3, 2022. However, Mr. Chwaja never completed this filing and was later notified by the TMOB that the Application was abandoned as a result. In response, Mr. Chwaja told the TMOB that he believed his mail was stolen and asked for the Application to be reinstated. However, the TMOB informed Mr. Chwaja, by letter dated March 8, 2023, that it did not have jurisdiction to reinstate the Application once it was deemed abandoned.

Mr. Chwaja appealed the TMOB’s decision to abandon the Application, arguing that section 47(2) of the Trademarks Act (the Act) permitted the TMOB to grant a retroactive extension of time and reinstate his Application. This was opposed by the Respondent, which used the doctrine of functus officio to argue that the TMOB was barred from doing so because “a decision maker, having reached a final decision in respect of a matter, cannot revisit that decision, subject to only limited exceptions.”

The Court found that there was no dispute that Mr. Chwaja failed to serve a counter statement by the prescribed deadline; and held the TMOB did not err in finding that the Application was abandoned. The Court also noted that Mr. Chwaja’s amended notice of application was directed towards the TMOB’s original decision abandoning the Application, instead of its decision regarding lack of jurisdiction – so the jurisdiction issue fell outside of the scope of the appeal. Nevertheless, the Court stated that even if the TMOB’s decision on its jurisdiction was at issue in the appeal, “…trademarks applications, once refused, cannot be revisited by the decision maker after a final decision has been made”.

Ultimately, the Court dismissed Mr. Chwaja’s appeal with costs.

Summary By: Amy Ariganello