
Publication
Trademark tussles just got spicier: Canada now offers costs awards
Costs awards in trademark opposition proceedings have been long anticipated in Canada.
Global | Publication | March 2025
In Macdonald Hotels Ltd v Bank of Scotland Plc [2025] EWHC 32 (Comm), the High Court examined the terms of a loan which precluded a borrower from creating any security or selling or disposing of any relevant assets without the lenders’ prior approval.
The court held that a term should be implied to the effect that a lender should not be entitled to refuse its consent "for a reason or reasons unconnected with what it perceived to be its own commercial best interests or … when no reasonable entity in the position of [the lender] could have refused consent" and there is a duty to exercise a contractual discretion “in good faith and not arbitrarily or capriciously”.
This ruling has wider implications in commercial contracts. A party wishing to retain an absolute discretion to approve or reject an action by a counterparty under a contract should consider drafting the relevant undertaking as an absolute prohibition, rather than as a prohibition without prior consent.
NRF’s fuller summary on the case can be found here, and the judgment can be found here.
Publication
Costs awards in trademark opposition proceedings have been long anticipated in Canada.
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