Polo Ralph Lauren Corp. v. Iarrera
T-2167-92 / T-2168-92
Teitelbaum J.
20/1/93
14 pp.
Appeal from decision of Senior Prothonotary striking out paragraph of affidavit and allowing cross-examinations of three affiants -- Respondent filing applications for registration of proposed trade mark "West Bay Polo Club & Design" -- Appellant opposing respondent's applications on grounds of confusion, lack of distinctiveness -- Senior Prothonotary striking out para. 9 of one affidavit as not only new evidence in appeal but new grounds to enlarge scope -- Leaving paras. 10 to 14 and 19 of other affidavit to Trial Judge to decide as to relevancy -- On appeal, judge to exercise own discretion, not rely on that of Prothonotary -- Decision to strike out para. 9 of first affidavit correct -- Appellant cannot enlarge scope of appeal by making evidence in affidavit filed as part of evidence in appeal of decision of Hearing Officer -- Issue of relevancy should be left to judge hearing appeal from Hearing Officer's decision -- Senior Prothonotary right in not striking paras. 10 to 14 and 19 of second affidavit -- Whether Senior Prothonotary erred in allowing cross-examinations of three affiants -- Party requesting examination must show ambiguity or confusion of statements in affidavit -- Special circumstances must be shown to Court by applicant to warrant cross-examination of affiant -- Respondent failing to indicate ambiguity, confusion or inconsistency in affidavit of two affiants -- Appeal allowed in part.