Decision

Therme Development (CY) Ltd. v. Nordik Spa Village Chelsea Inc., 2026 FCA 85

Justice Locke; Justice Heckman; Justice Roussel - 2026-05-05

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Therme Development (TD) appeals from 2024 FC 1765 that granted in part an application by the respondents Nordik seeking an Order pursuant to sections 57 and 58 of the Trademarks Act, striking out some of the services listed in association with the following four trademark registrations owned by TD ... For the reasons set out below, I would dismiss the appeal. ... In deciding whether the THERME WOMAN mark and the THERME WOMAN’S HEAD mark, when sounded, are clearly descriptive, the Federal Court acknowledged the Best Canadian decision and recognized the importance of the word element being dominant. To this point, I see no error in the Federal Court’s understanding of the law. However, the Federal Court then determined that the word elements of TD’s composite marks were dominant because the design elements would not be sounded. This reasoning was problematic in my view. ... Having concluded that the word element of each of the THERME WOMAN mark and the THERME WOMAN’S HEAD mark is dominant, I confirm that the Federal Court did not err in its conclusion that, when sounded, each of these marks is clearly descriptive in the French language of the character of the services identified at paragraph 50 of the Decision. ... While it is true that a mark must first be found to be descriptive before it can be found to be misdescriptive, the Federal Court’s finding that the trademarks in question are not clearly descriptive of certain services does not necessarily lead to the conclusion that they are not deceptively misdescriptive of those services. ... In this sense, the word found to be descriptive in French (pronounced as “THERM”) is not the same as the word found to be confusing in English (pronounced as “THER-MA”).

Decision relates to:

 

Canadian Intellectual Property