Anashara v. Swagger Publications Inc.

Anashara v. Swagger Publications Inc.

The Court found that the applicant filed credible new evidence (affidavit, photos, flyer and oral testimony) that supplied date, location and context for sales on January 1, 2011 and which would have materially affected the Registrar's decision; accordingly the Registrar's expungement was set aside for specific wares for which use in the normal course of trade was established (t-shirts, jeans, scarves, hats, sports bags, pullovers, shoes, jackets), while the Registrar's finding of non-use for other wares and for the registered publication services was upheld because evidence was insufficient.

Citation
2015 FC 1241
Parties
Applicant: Faisal Anashara; Respondent: Swagger Publications Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
3 November 2015
Procedural Posture
Trade Marks Act Appeal (s.56) / Judgment
Outcome
Appeal allowed in part; Registrar's decision to expunge the SWAGGER mark set aside only with respect to specified wares; expungement otherwise upheld.
Legal Topics
Use of Trade Mark, Section 45 Expungement, Section 56 Appeal, Normal Course of Trade, Admissibility and Weight of New Evidence
Source Language
English
Intellectual Property Trade Mark Law Administrative Law Evidence Use of Trade Mark Section 45 Expungement Section 56 Appeal Normal Course of Trade +1 more

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Parties

Faisal Anashara

Applicant

Swagger Publications Inc.

Respondent

Procedural Posture

Trade Marks Act Appeal (s.56) / Judgment

Legal Issues

  1. 1 Whether the applicant filed new evidence on appeal that would have materially affected the Registrar's findings and exercise of discretion
  2. 2 Whether the applicant established use of the SWAGGER mark in association with registered wares under s.4(1) of the Trade-marks Act
  3. 3 Whether the applicant established use of the SWAGGER mark in association with registered services under s.4(2) of the Trade-marks Act

Ratio Decidendi

The Court found that the applicant filed credible new evidence (affidavit, photos, flyer and oral testimony) that supplied date, location and context for sales on January 1, 2011 and which would have materially affected the Registrar's decision; accordingly the Registrar's expungement was set aside for specific wares for which use in the normal course of trade was established (t-shirts, jeans, scarves, hats, sports bags, pullovers, shoes, jackets), while the Registrar's finding of non-use for other wares and for the registered publication services was upheld because evidence was insufficient.

Court Disposition

Appeal allowed in part; Registrar's decision to expunge the SWAGGER mark set aside only with respect to specified wares; expungement otherwise upheld.

Orders

  • Set aside the Registrar's decision to expunge the SWAGGER mark with respect to the following wares: t-shirts, jeans, scarves, hats, sports bags, pullovers, shoes, and jackets
  • Maintain expungement/renewal status for all other wares and for the registered services (publishing) due to insufficient evidence of use