U Box It, a Canadian company providing garbage removal and waste management services, is the registered owner of the Canadian trademark U BOX IT. In 2009, U-Haul attempted to register U-BOX and U-BOX, WE HAUL trademarks in association with “moving and storage services, namely, rental, moving, storage, delivery and pick up of portable storage units.” U Box It opposed these application on the basis of confusion.
At first instance, the trade mark opposition board held, that U-Haul’s trademarks were confusing with U Box-Its registered trademark (see here and here), and refused both applications. U-Haul then appealed to the Federal Court and, as allowed by subsection 56(5), adduced new evidence purporting to show that no one business in Canada provides both garbage removal and moving services. The main issue before the Federal Court was whether this new evidence would have materially affected the Board’s decision, thereby entitling U-Haul to a de novo review. Justice Camp held that the new evidence would not have materially affected the TMOB’s decision, such that the TMOB’s decision need only fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. Justice Camp concluded that U-Haul had failed to demonstrate the TMOB’s decision fell outside the range of reasonable outcomes, and accordingly dismissed U-Haul’s appeal.
U-Haul then appealed to the Court of Appeal arguing that the Federal Curt erred in holding that the new evidence would not have materially affected the TMOB’s decision. The Court of Appeal disagreed, holding that the “new” evidence only supplements or confirms the findings of the Board. Applying the standard of review set out by the Supreme Court of Canada in Agraira, the Court held that the Board’s decision was within the range of reasonable outcomes and that it was not the Court of Appeal’s role to reweigh the evidence:
 For the reasons below, I have concluded that the Board’s decisions withstand scrutiny and that there is no basis to intervene. I acknowledge that in this case there are important factors in U-Haul’s favour. On the other hand, it was reasonable for the Board to give overriding weight to the circumstances in favour of U Box It Inc.
 …The Board is entitled to significant deference in its evaluation of the evidence. The Board’s reasons amply support the conclusion that U Box It Inc.’s first use was in 2006, and there is no basis for this Court to intervene.
 Essentially, in this appeal U-Haul asks this Court to re-evaluate the evidence and reweigh the confusion factors. In my view, the decisions of the Board with respect to paragraph 12(1)(d) are reasonable, and it is not appropriate to conduct a re-weighing exercise in this case.
A copy of the Court of Appeal’s Reasons is available here.