Big Duck Games, LLC v. X-Flow Ltd.

Big Duck Games, LLC v. X-Flow Ltd.

The Court found the new evidence material because it remedied the Registrar's evidentiary gap (explaining non-receipt of the s.45 notice) and provided sufficiently probative evidence of use of the FLOW mark in Canada during the Relevant Period (app store screenshots, website printouts, download statistics and revenues from in-app purchases). The appellant's right to file the evidence vested before the amendment to s.56(5). Consequently the Registrar's expungement decision was set aside and the registration maintained except for goods relating to physical consoles, which lacked evidence of use.

Citation
2025 FC 1704
Parties
Applicant: Big Duck Games, LLC; Respondent: X-Flow Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
20 October 2025
Procedural Posture
Trademarks Act Appeal (expungement Under Section 45) / Federal Court Judgment
Outcome
Appeal allowed; Registrar's decision dated September 18, 2024 set aside; Registration No. TMA924,809 maintained except for physical consoles; no costs awarded
Legal Topics
Trademark Use, Expungement, Section 45, Subsection 56(5) Leave, New Evidence Admissibility, Appellate De Novo Review
Source Language
English
Intellectual Property Trademarks Administrative Law Trademark Use Expungement Section 45 Subsection 56(5) Leave New Evidence Admissibility +1 more

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Parties

Big Duck Games, LLC

Applicant

X-Flow Ltd.

Respondent

Procedural Posture

Trademarks Act Appeal (expungement Under Section 45) / Federal Court Judgment

Legal Issues

  1. 1 Whether the new evidence is material to the Registrar's expungement decision under section 45
  2. 2 Whether the new evidence establishes use of the FLOW mark in association with the registered goods during the Relevant Period (May 9, 2021 to May 9, 2024)
  3. 3 Whether leave was required to file new evidence given amendment to subsection 56(5) of the Trademarks Act

Ratio Decidendi

The Court found the new evidence material because it remedied the Registrar's evidentiary gap (explaining non-receipt of the s.45 notice) and provided sufficiently probative evidence of use of the FLOW mark in Canada during the Relevant Period (app store screenshots, website printouts, download statistics and revenues from in-app purchases). The appellant's right to file the evidence vested before the amendment to s.56(5). Consequently the Registrar's expungement decision was set aside and the registration maintained except for goods relating to physical consoles, which lacked evidence of use.

Court Disposition

Appeal allowed; Registrar's decision dated September 18, 2024 set aside; Registration No. TMA924,809 maintained except for physical consoles; no costs awarded

Orders

  • The appeal is allowed and the decision of the Registrar dated September 18, 2024 is set aside
  • The list of goods in Registration No TMA924,809 is amended to delete physical consoles and to read: (1) Software for playing computer games for use on mobile and cellular phones; and (2) Computer games; software for playing computer games; video games; software for playing video games; downloadable video and...