Beyond Restaurant Group LLC v. Wang

Beyond Restaurant Group LLC v. Wang

Applicant had standing as a person interested but failed to rebut the presumption of validity on a balance of probabilities because its evidence of non-use and of a material misrepresentation was inconclusive (PI searches lacked scope and were dated, no evidence of non-use at the material date, and uncertainty...

Source-derived case information.

Citation
2020 FC 514
Parties
Applicant: Beyond Restaurant Group LLC; Respondent: Qiang Wang
Court
Federal Court
Jurisdiction
Canada
Judgment Date
15 April 2020
Procedural Posture
Application Under Trademarks Act S.57 (expungement) / Federal Court Judgment (application Dismissed)
Outcome
Application dismissed; registration maintained
Legal Topics
Distinctiveness, Expungement, Material Misrepresentation, Standing (person Interested), Likelihood of Confusion, Declaration of Use
Source Language
english
Intellectual Property Trademark Law Administrative Law Distinctiveness Expungement Material Misrepresentation Standing (person Interested) Likelihood of Confusion +1 more

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Parties

Beyond Restaurant Group LLC

Applicant

Qiang Wang

Respondent

Procedural Posture

Application Under Trademarks Act S.57 (expungement) / Federal Court Judgment (application Dismissed)

Legal Issues

  1. 1 standing to apply under TMA s.57
  2. 2 distinctiveness of the mark at the material date (TMA s.18(1)(b))
  3. 3 whether registration obtained by material misrepresentation (TMA s.40(2))

Ratio Decidendi

Applicant had standing as a person interested but failed to rebut the presumption of validity on a balance of probabilities because its evidence of non-use and of a material misrepresentation was inconclusive (PI searches lacked scope and were dated, no evidence of non-use at the material date, and uncertainty whether applicant was aware of the senior application when it began use); therefore expungement was not warranted and the registration stands.

Court Disposition

Application dismissed; registration maintained

Orders

  • Application to expunge Canadian trademark registration No. TMA985822 dismissed
  • Registration TMA985822 remains on the register