U-HAUL INTERNATIONAL INC. Appellant v. U BOX IT INC., 2017 FCA 170

Date: 20170815 Docket: A-3-16 Citation: 2017 FCA 170 CORAM: WEBB J.A. SCOTT J.A. WOODS J.A. BETWEEN: U-HAUL INTERNATIONAL INC. Appellant and U BOX IT INC. Respondent Heard at Ottawa, Ontario, on January 18, 2017. Judgment delivered at Ottawa, Ontario, on August 15, 2017. REASONS FOR JUDGMENT BY: WOODS J.A. CONCURRED IN BY: WEBB J.A. SCOTT J.A. Date: 20170815 Docket: A-3-16 Citation: 2017 FCA 170 CORAM: WEBB J.A. SCOTT J.A. WOODS J.A. BETWEEN: U-HAUL INTERNATIONAL INC. Appellant and U BOX IT INC.

Respondent REASONS FOR JUDGMENT WOODS J.A. [ 1 ] U-Haul International Inc. (U-Haul) is a U.S. corporation that applied for registration under the Trade-marks Act , R.S.C. 1985, c. T-13 (the Act) in respect of four trademarks, U-BOX, U-BOX WE-HAUL, U-HAUL U-BOX, and U-HAUL U-BOX WE- HAUL.

U-Haul has licensed these marks to entities that carry on U-Haul’s business in Canada. [ 2 ] U Box It Inc., a Canadian corporation, opposed the applications on the ground that the trademarks are confusing with its registered trademark U BOX IT. [ 3 ] In four separate decisions, The Trade-marks Opposition Board (the Board) permitted the registration of the two marks that contain U-Haul’s name, U-HAUL U-BOX and U-HAUL U-BOX WE-HAUL. It denied registration of the other two, U-BOX and U-

BOX WE-HAUL. [4] U-Haul appealed to the Federal Court under

section 56 of the Act with respect to the two decisions adverse to it.

The FederalCourt upheld these decisions, and U-Haul now appeals to this Court. [5] In this appeal, U-Haul submits that the Federal Court erred by: (1) not conducting a de novo analysis on the basis of newevidence, and (2) upholding the Board’s conclusion that the trademarks are confusing. [6] By way of background, U-Haul applied for registration of U-BOX and U-BOX WE-HAUL on October 15, 2009 for use inassociation with “moving and storage services, namely, rental, moving, storage, delivery and pick up of portable storage units.” Use ofthese trademarks in Canada commenced around the same time. [7] As suggested by the marks, this part of U-Haul’s business involves a service whereby a large box, or portable storage unit, issupplied to a customer, filled by the customer, and then taken away by a U-Haul entity for moving or storage.

Typically the service itselfoffers an opportunity for advertising because the boxes prominently display the trademarks at issue and sit on the customer’s driveway. [8] U Box It Inc.’s trademark, U BOX IT, was registered on February 29, 2008 for use in association with “garbage removal andwaste management services.” [9] The garbage removal business is performed in a similar fashion to U-Haul’s business. A large box is supplied to a customer,and after being filled with waste by the customer the box is picked up for disposal.

Typically these boxes also prominently display thetrademark at issue and sit on customers’ driveways. I. Relevant Legislation [10] The relevant provisions of the Act are reproduced in Appendix A. [11] Under

section 38 of the Act, the registration of a trademark may be opposed on any of the following grounds: (

a) that the application does not conform to therequirements of

section 30;

a) la demande ne satisfait pas aux exigences de l’article30;(

b) that the trade-mark is not registrable;

b) la marque de commerce n’est pas enregistrable;(

c) that the applicant is not the person entitled toregistration of the trade-mark; or

c) le requérant n’est pas la personne ayant droit àl’enregistrement;(

d) that the trade-mark is not distinctive.

d) la marque de commerce n’est pas distinctive. [12] These grounds relate to various requirements for registration in the Act. Three of these are relevant in this appeal, and allrelate to the test for confusion. They are: (

a) A trademark is not registrable if it is confusing with a registered trademark (paragraphs 38(2)(

b) and 12(1)(

d) of the Act).The determination of whether two trademarks are confusing is made as at “the date where the matter is disposed of on the evidenceadduced” (Park Avenue Furniture Corp. v. Wickes/Simmons Bedding Ltd. (1991), (FCA), 37 C.P.R. (3d) 413 at 422,130 N.R. 223 (F.C.A.)). (

b) A trademark that had been used in Canada or made known in Canada may not be registered if it is confusing with atrademark that had been previously used in Canada or made known in Canada by any other person. This determination is to be made asat the date that the applicant’s mark was first used or made known in Canada (paragraphs 38(2)(

c) and 16(1)(

a) of the Act). (

c) A trademark can only be registered if it is “distinctive”, which means that the trademark distinguishes the goods or servicesfrom the goods or services of others, or is adapted to distinguish them (paragraph 38(2)(

d) and

section 2 of the Act). This is to bedetermined as at the date of filing the statement of opposition (Park Avenue Furniture, at 423-424). [13] The framework for determining whether one trademark is confusing with another is set out in

section 6 of the Act. In general,the test to determine confusion is whether the use of both marks in the same area would be likely to lead to the inference that the relevantgoods or services are manufactured, sold, leased, hired or performed by the same person. For this purpose, the term “use” is given anexpansive meaning in

section 4 of the Act. [14] Subsection 6(5) sets out the considerations to be taken into account in this determination. All the surrounding circumstancesare to be considered, including: (

a) the inherent distinctiveness of the trade-marks ortrade-names and the extent to which they have becomeknown;

a) le caractère distinctif inhérent des marques decommerce ou noms commerciaux, et la mesure danslaquelle ils sont devenus connus;(

b) the length of time the trade-marks or trade-nameshave been in use;

b) la période pendant laquelle les marques decommerce ou noms commerciaux ont été en usage;(

c) the nature of the goods, services or business;

c) le genre de produits, services ou entreprises;(

d) the nature of the trade; and

d) la nature du commerce;(

e) the degree of resemblance between the trade-marksor trade-names in appearance or sound or in the ideassuggested by them.

e) le degré de ressemblance entre les marques decommerce ou les noms commerciaux dans laprésentation ou le son, ou dans les idées qu’ilssuggèrent.

II. The Board and Federal Court decisions [ 15 ] The Board ( per Member Fung) determined that, based on the three grounds of opposition mentioned in the previous section, U-Haul failed to show on a balance of probabilities that U-Haul’s two trademarks were not confusing with U Box It Inc.’s mark: 2014 TMOB 207 (U-BOX) and 2014 TMOB 208 (U-BOX WE-HAUL). The particular findings of the Board are concisely summarized in U- Haul’s memorandum, at paragraph 16: (

a) On September 26, 2014, the date of the TMOB Decisions, the U-Haul Trademarks were confusing with the previously registered Respondent Trademark – contrary to s. 12(1)(

d) of the Trade-marks Act , RSC 1985, c T-13 (“ TMA ”); (

b) On October 3, 2009, the date of first use of the U-Haul Trademarks, the Appellant was not entitled to registration because the U- Haul Trademarks were confusing with the previously used Respondent Trademark – contrary to s. 16(1) (

a) of the TMA ; and (

c) On August 31, 2010 (U-BOX) and on November 15, 2010 (U-BOX WE-HAUL), the dates of the Statements of Opposition, the U-Haul Trademarks were not distinctive because they were confusing with the Respondent Trademark – contrary to s. 2 of the TMA . [ 16 ] In its confusion analysis, the Board considered the factors listed in subsection 6(5) of the Act and then weighed these factors in reaching an overall conclusion.

The Board’s general conclusion with respect to each of the subsection 6(5) factors is set out below. (a) Paragraph 6(5)( a ) – The factor of distinctiveness favours U-Haul because of the distinctiveness acquired through greater sales and presence. (b) Paragraph 6(5)( b ) – The factor of length of time in use favours U Box It Inc. because it commenced sales using its trademark in 2006 whereas U-Haul did not commence using its trademarks in Canada until October 3, 2009. (c) Paragraph 6(5)( c ) – The nature of the services factor slightly favours U Box It Inc.

Although the services themselves are not the same since one is garbage disposal and the other is moving and storage, there is similarity in the way the services are provided and the services are complementary since a customer who is moving or renovating may require moving or storage services and also garbage removal services. (d) Paragraph 6(5)( d ) – The nature of trade factor does not favour either party.

Although there is a connection between the services in that potential customers could require both types of services in connection with a move or renovation project, an overlap in channels of trade is unlikely. (e) Paragraph 6(5)( e ) – The factor of resemblance favours U Box It Inc. because the trademarks share the same important feature, “U BOX” . [ 17 ] In weighing these factors, the Board found in favour of U Box It Inc. The Board’s analysis was very similar for the two U- Haul trademarks and at all material dates.

Its general conclusion with respect to U-BOX is reproduced from paragraph 53 of that decision. [53] In applying the test for confusion, I have considered it as a matter of first impression and imperfect recollection.

Having regard to all the surrounding circumstances including the high degree of resemblance between the parties’ trade-marks, the longer period of time for which the Opponent’s trade-mark has been in use, as well as the similarities in the execution of and the complementary nature of the parties’ services, I am of the view that the average Canadian consumer, when faced with moving and storage services offered and performed under the trade-mark U-BOX, would likely think that they originate from the same source as the garbage removal and waste management services offered and performed under trade-mark U BOX IT, or vice versa.

While I acknowledge that the Applicant’s Mark has acquired distinctiveness to a larger extent than that of the Opponent’s from 2009 to 2012, I am of the view that it is insufficient to shift the balance of probabilities in favour of the Applicant in the present case. [ 18 ] Accordingly, the Board allowed the opposition to U-Haul’s applications and denied the registration of these two trademarks. [ 19 ] In the appeal to the Federal Court, there were two issues, whether to conduct a de novo analysis on account of new evidence, and whether there was an error in the Board’s finding of confusion. [ 20 ] In reasons cited as 2015 FC 1345 , the Federal Court ( per Camp J.) refused to conduct a de novo review on the basis that the new evidence would not have made a material difference in the Board’s findings of fact or exercise of discretion.

As for the confusion finding, the Federal Court applied a reasonableness standard of review and dismissed the appeal on the basis that the Board’s decisions were reasonable. III. Analysis A. Should the Federal Court have undertaken a de novo analysis? [ 21 ]

Section 56 of the Act permits an appeal of a decision of the Board to the Federal Court. In the appeal, new evidence may be introduced and the Federal Court “may exercise any discretion vested in the Registrar” (subsection 56(5)). [ 22 ] The introduction of new evidence may radically change the approach to be taken by the Federal Court. This was discussed in Servicemaster Company v. 385229 Ontario Ltd. (Masterclean Service Company), 2015 FCA 114 , 132 C.P.R. (4th) 161, at paragraph 16 : [16] The standard of review to be applied in an appeal of a decision of the Board is reasonableness. In particular, the Board’s

interpretation of the Act as its home statute is subject to deference. […] Moreover, when new evidence is adduced on appeal before thejudge under

section 56 of the Act and the judge comes to the conclusion that the new evidence would have materially affected theBoard’s finding of fact or exercise of discretion, the judge must come to his own conclusion on the issue to which the additionalevidence relates (Molson Breweries v. John Labatt Ltd., (FCA), [2000] 3 F.C. 145, [2000] F.C.J. No. 159 atpara.51). [23] At the Federal Court, U-Haul introduced new affidavit evidence that included telephone listings for the purpose ofestablishing that U-Haul’s and U Box It Inc.’s services and channels of trade do not overlap.

According to U-Haul, this evidence revealsthat no one business in Canada likely provides the services of both garbage removal and moving and storage. [24] The Federal Court considered whether a de novo analysis was appropriate as a result of this new evidence and concluded thatit was not because the new evidence would not have materially affected the Board’s reasoning or its findings of fact (Federal Courtreasons, paragraph 34). [25] U-Haul submits that the Federal Court should have conducted a de novo review.

It submits that the new evidence is materialbecause it negates the Board’s finding that the parties’ services may be complementary. This is a question of mixed fact and law forwhich the standard of review is palpable and overriding error: Monster Cable Products, Inc. v. Monster Daddy, LLC, 2013 FCA 137, 445N.R. 379, at paragraph 4. [26] In my view, the Federal Court made no palpable and overriding error in refusing to undertake a de novo review. I agree with UBox It Inc. that the new evidence merely supplements or confirms the findings of the Board.

The Federal Court’s conclusion on thisissue, which was well explained in its reasons, was open to it. B. Are the trademarks confusing? [27] As mentioned above, the Board and the Federal Court confirmed all three grounds of opposition relating to confusion. I willfirst consider the decision under paragraph 12(1)(

d) of the Act that U-Haul’s trademarks are confusing with a registered trademark, UBOX IT. [28] The standard of review that applies to this issue is set out in Agraira v. Canada (Public Safety and Emergency Preparedness),2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47, (Servicemaster, at paragraphs 16-18). In essence, this Court is to step into the shoesof the Federal Court and determine whether the Board’s decisions are reasonable. [29] U-Haul submits that the Board’s confusion analysis contains many errors in its selection of subsection 6(5) factors to beconsidered and in its determination as to how these factors should be weighed. Some of the key alleged errors are listed below. (

a) The Board did not give sufficient weight to the fact that the services of moving and storage and garbageremoval are so dissimilar. (

b) The Board should not have given any weight to the similarities in the manner in which the services areprovided. (

c) The Board erred in giving weight to unreliable evidence as to the first use of U Box It Inc.’s trademark. (

d) The Board failed to give sufficient weight to minor differences in the trademarks given that they all had lowinherent distinctiveness. (

e) The Board erred in considering that the channels of trade was a neutral factor because it was clearly in U-Haul’s favour. (

f) The Board erred in not giving due weight to U-Haul’s notoriety. [30] In light of the appropriate standard of review, this Court cannot intervene in the Federal Court’s decision if the Board’s overallconclusions are within a range of reasonable outcomes.

In addition, the Supreme Court has instructed that significant deference should beshown to the Board in its confusion analysis: “[t]he determination of the likelihood of confusion requires an expertise that is possessedby the Board (which performs such assessments day in and day out) in greater measure than is typical of judges …”: Mattel, Inc. v.3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772, at paragraph 36. [31] For the reasons below, I have concluded that the Board’s decisions withstand scrutiny and that there is no basis to intervene.

Iacknowledge that in this case there are important factors in U-Haul’s favour. On the other hand, it was reasonable for the Board to giveoverriding weight to the circumstances in favour of U Box It Inc. [32] One of U-Haul’s main submissions was that the Board did not give sufficient weight to the fact that the services of movingand storage and garbage removal are so dissimilar.

It provides the following analogy at paragraph 54 of its memorandum: Allowing the manner in which a service is provided to be a paramount consideration in the determination of confusion between twotrademarks will drastically enlarge the rights of trade-mark holders and prevent businesses with similar trademarks from providing evenunrelated goods and services. The effect of upholding the findings of Mr.

Justice Camp and the Registrar would be, for example, toprevent a bottled water delivery service from carrying a similar trade-name as an electrician because both rely upon a van to drive to acustomer’s door to provide the service. Additionally, with many businesses providing their goods and services through the internet, onesenior trade-mark holder would effectively be able to monopolize the entirety of the internet, because the manner in which the service isprovided is similar.

[ 33 ] In my view, this analogy does not hold water. Unlike the services at issue in this appeal, there is very little in common between the delivery of bottled water and an electrician’s services. In this case, the Board reasonably found that the services of U-Haul and U Box It Inc. were performed in a similar manner and that their customers might overlap because individuals who are in the process of moving or renovating may be interested in the services of both companies. [ 34 ] U-Haul also submits that the manner in which the services are performed should not have been the paramount consideration.

This was not the case in the Board’s decisions. In particular, the Board emphasized other factors, such as the strong resemblance in appearance, sound, and ideas between the marks. It also noted that U-Haul’s trademarks are not inherently distinctive, and were not used in Canada until a few years after the trademark belonging to U Box It Inc. [ 35 ] U-Haul also submits that the Board did not give sufficient weight to the small differences in the trademarks, which provide distinctiveness in circumstances where the marks are not inherently distinctive. [ 36 ] I disagree.

The Board concluded that distinctiveness was in U-Haul’s favour, based on the distinctiveness that it acquired from significant use. However, other factors trumped this consideration. The weighing exercise undertaken by the Board was reasonable based on the facts of this case. [ 37 ] U-Haul also takes issue with the Board’s conclusion as to the nature of the trade. U-Haul submits that this factor is in its favour, whereas the Board found that it was not in either party’s favour.

This is explained in paragraph 46 of the Board’s decision with respect to U-BOX WE-HAUL. [46] In view of the connection that exists between the parties’ services and the fact that the Opponent’s registration and the application for the Mark do not contain any restrictions, there is potential for overlap in the parties’ channels of trade.

However, such overlap appears to be unlikely as the evidence shows that the Applicant’s services are only made available by contacting U-HAUL by phone, via the U-HAUL website or at the U-HAUL service locations. [ 38 ] I agree with U-Haul that the Board’s conclusion that this factor does not favour either party is difficult to reconcile with the Board’s finding that an overlap in the channels of trade is unlikely. However, when the reasons of the Board are considered as a whole, it is clear that the “channels of trade” was not a factor that would have affected the Board’s decisions.

The Board took a number of circumstances into account and weighed them reasonably in U Box It Inc.’s favour. It is the facts and circumstances that are important, rather than the formal label given to them in subsection 6(5) of the Act . [ 39 ] U-Haul further submits that the Board erred in its conclusion on length of use in paragraph 6(5) ( b ). In particular, U-Haul suggests that there was not sufficient reliable evidence to support the Board’s finding that U Box It Inc.’s use commenced in 2006. [ 40 ] I disagree. 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. [ 41 ] Essentially, in this appeal U-Haul asks this Court to re-evaluate the evidence and re-weigh 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. [ 42 ] As a result of this conclusion, it is not necessary to discuss paragraphs 16(1) (

a) and 38(2) (

d) of the Act , which are U Box It Inc.’s other grounds of opposition. [ 43 ] I would dismiss the appeal with costs. “Judith Woods” J.A. “I agree Wyman W. Webb J.A.” “I agree A.F. Scott J.A.” APPENDIX A Trade-marks Act , R.S.C., 1985, c. T-13

Definitions Définitions 2 In this Act , 2 Les définitions qui suivent s’appliquent à la présente loi. … […] distinctive , in relation to a trade-mark, means a trade- mark that actually distinguishes the goods or services in association with which it is used by its owner from the goods or services of others or is adapted so to distinguish them; ( distinctive ) distinctive Relativement à une marque de commerce, celle qui distingue véritablement les produits ou services en liaison avec lesquels elle est employée par son propriétaire, des produits ou services d’autres propriétaires, ou qui est adaptée à les distinguer ainsi. ( distinctive )

When mark or name confusing Quand une marque ou un nom crée de la confusion 6

(1) For the purposes of this Act , a trade-mark or trade- name is confusing with another trade-mark or trade- name if the use of the first mentioned trade-mark or trade-name would cause confusion with the last mentioned trade-mark or trade-name in the manner and circumstances described in this section. 6

(1) Pour l’application de la présente loi, une marque de commerce ou un nom commercial crée de la confusion avec une autre marque de commerce ou un autre nom commercial si l’emploi de la marque de commerce ou du nom commercial en premier lieu mentionnés cause de la confusion avec la marque de commerce ou le nom commercial en dernier lieu mentionnés, de la manière et dans les circonstances décrites au présent article.

(2) The use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the goods or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class.

(2) L’emploi d’une marque de commerce crée de la confusion avec une autre marque de commerce lorsque l’emploi des deux marques de commerce dans la même région serait susceptible de faire conclure que les produits liés à ces marques de commerce sont fabriqués, vendus, donnés à bail ou loués, ou que les services liés à ces marques sont loués ou exécutés, par la même personne, que ces produits ou ces services soient ou non de la même catégorie générale. … […]

(5) In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including

(5) En décidant si des marques de commerce ou des noms commerciaux créent de la confusion, le tribunal ou le registraire, selon le cas, tient compte de toutes les circonstances de l’espèce, y compris : (

a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known;

a) le caractère distinctif inhérent des marques de commerce ou noms commerciaux, et la mesure dans laquelle ils sont devenus connus; (

b) the length of time the trade-marks or trade-names have been in use;

b) la période pendant laquelle les marques de commerce ou noms commerciaux ont été en usage; (

c) the nature of the goods, services or business;

c) le genre de produits, services ou entreprises; (

d) the nature of the trade; and

d) la nature du commerce; (

e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them.

e) le degré de ressemblance entre les marques de commerce ou les noms commerciaux dans la présentation ou le son, ou dans les idées qu’ils suggèrent. When trade-mark registrable Marque de commerce enregistrable 12

(1) Subject to

section 13, a trade-mark is registrable if it is not 12

(1) Sous réserve de l’article 13, une marque de commerce est enregistrable sauf dans l’un ou l’autre des cas suivants : … […] (

d) confusing with a registered trade-mark;

d) elle crée de la confusion avec une marque de commerce déposée; … […] Registration of marks used or made known in Canada Enregistrement des marques employées ou révélées au Canada … […] 16

(1) Any applicant who has filed an application in accordance with

section 30 for registration of a trade- mark that is registrable and that he or his predecessor in title has used in Canada or made known in Canada in association with goods or services is entitled, subject to

section 38, to secure its registration in respect of those goods or services, unless at the date on which he or his predecessor in title first so used it or made it known it was confusing with 16

(1) Tout requérant qui a produit une demande selon l’article 30 en vue de l’enregistrement d’une marque de commerce qui est enregistrable et que le requérant ou son prédécesseur en

titre a employée ou fait connaître au Canada en liaison avec des produits ou services, a droit, sous réserve de l’article 38, d’en obtenir l’enregistrement à l’égard de ces produits ou services, à moins que, à la date où le requérant ou son prédécesseur en

titre l’a en premier lieu ainsi employée ou révélée, elle n’ait créé de la confusion : (

a) a trade-mark that had been previously used in Canada or made known in Canada by any other person;

a) soit avec une marque de commerce antérieurement employée ou révélée au Canada par une autre personne; Statement of opposition Déclaration d’opposition 38

(1) Within two months after the advertisement of an application for the registration of a trade-mark, any person may, on payment of the prescribed fee, file a statement of opposition with the Registrar. 38

(1) Toute personne peut, dans le délai de deux mois à compter de l’annonce de la demande, et sur paiement du droit prescrit, produire au bureau du registraire une déclaration d’opposition. Grounds Motifs

(2) A statement of opposition may be based on any of the following grounds:

(2) Cette opposition peut être fondée sur l’un des motifs suivants :

(

a) that the application does not conform to the requirements of

section 30;

a) la demande ne satisfait pas aux exigences de l’article 30; (

b) that the trade-mark is not registrable;

b) la marque de commerce n’est pas enregistrable; (

c) that the applicant is not the person entitled to registration of the trade-mark; or

c) le requérant n’est pas la personne ayant droit à l’enregistrement; (

d) that the trade-mark is not distinctive.

d) la marque de commerce n’est pas distinctive. Appeal Appel 56

(1) An appeal lies to the Federal Court from any decision of the Registrar under this Act within two months from the date on which notice of the decision was dispatched by the Registrar or within such further time as the Court may allow, either before or after the expiration of the two months. 56

(1) Appel de toute décision rendue par le registraire, sous le régime de la présente loi, peut être interjeté à la Cour fédérale dans les deux mois qui suivent la date où le registraire a expédié l’avis de la décision ou dans tel délai supplémentaire accordé par le tribunal, soit avant, soit après l’expiration des deux mois. … […]

(5) On an appeal under subsection (1), evidence in addition to that adduced before the Registrar may be adduced and the Federal Court may exercise any discretion vested in the Registrar.

(5) Lors de l’appel, il peut être apporté une preuve en plus de celle qui a été fournie devant le registraire, et le tribunal peut exercer toute discrétion dont le registraire est investi. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-3-16 APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE CAMP DATED DECEMBER 4, 2015, NO. T-2448- 14 AND T-2449-14 STYLE OF CAUSE: U-HAUL INTERNATIONAL INC. v. U BOX IT INC. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 18, 2017 REASONS FOR JUDGMENT BY: WOODS J.A. CONCURRED IN BY: WEBB J.A. SCOTT J.A.

DATED: AUGUST 15, 2017 APPEARANCES : Scott Miller For The Appellant Matthew R. Norwood For The Respondent SOLICITORS OF RECORD : MBM Intellectual Property Law LLP Ottawa, Ontario For The Appellant Ridout & Maybee LLP Toronto, Ontario For The Respondent