Alliance has successfully appealed a decision of the Federal
Court (2014 FC 1224 and summarized here) that upheld a decision of the
Registrar of Trademarks (2013 TMOB 218) which confirmed the
registration of Whirlpool's trademark SPEED QUEEN.
The majority of the Court of Appeal held that Whirlpool's
evidence of use does not meet the low threshold of evidence
required to show use of the trademark at issue in association with
Whirlpool's goods. Thus, the appeal was allowed and the
trademark SPEED QUEEN was expunged.
The dissent noted that the burden to prove use is not a heavy
burden, and thus was not persuaded that the Federal Court judge
made a palpable and overriding error in her assessment of the
evidence or that she erred in law in concluding that the decision
of the Registrar of Trademarks upholding the registration of the
respondent's trademarks at issue "SPEED QUEEN" in
association with laundry washing machines and laundry dryers was
Use of ABSOLUTE SECURITY for use with software found to
The Federal Court has found that Valt.X has infringed two of the
trademarks owned by Absolute.
Absolute had registered ABSOLUTE for use in association with
software and services in 2003, and has registered four other marks
containing the word absolute. Valt.X began using the term ABSOLUTE
SECURITY in association with its software in 2012.
The Court noted counsel for Valt.X was removed from the record,
and Valt.X failed to either file and serve a Notice of Appointment
of Solicitor or bring a motion for relief pursuant to Rule 120 of
the Federal Courts Rules. At the hearing of the matter, it was
disclosed that the Respondent retained counsel and commenced an
action on September 28, 2015, to expunge Absolute's
trademarks.The Court found that Valt.X made a choice to use its
financial resources to retain counsel to commence the expungement
action, rather than use the funds to retain counsel to appear on
this application. In the end, the Court only heard oral submissions
from counsel for [extra carriage return] Absolute, but referred to
earlier-filed written submissions.
The Court found that Valt.X uses the trademark ABSOLUTE SECURITY
with respect to its software, and found that use to be confusing
with the Applicant's registered trademark ABSOLUTE and its
common law mark ABSOLUTE SOFTWARE. Damages of $2,000 were
The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
Last year we saw the Canadian Courts release trademark decisions that granted a rare interlocutory injunction, issued jailed sentences for failure to comply with injunctive relief, grappled with trademark and internet issues...
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