Trademark Decisions
New evidence on appeal showed use of SWAGGER for some of
the registered wares
Anashara v. Swagger Publications Inc.,
2015 FC 1241
Mr. Anashara has successfully appealed, in part, a decision of the Registrar to expunge his trademark SWAGGER pursuant to section 45 of the Trademarks Act. Mr. Anashara was required to demonstrate with evidence the use of the SWAGGER Mark, in Canada, in association with each of the wares and services specified in the registration during the relevant time period being July 9, 2009 and July 9, 2012. The Court noted that any toiletry items listed in the registration are irrelevant to this proceeding as Mr. Anashara transferred that portion of the registration to Proctor & Gamble as of July 4, 2012.
The issue for determination on the appeal is whether Mr. Anashara presented new evidence, and, if so, whether the new evidence would have materially affected the Registrar's decision.
Mr. Anashara was found to have provided credible new evidence with respect to his wares and the normal course of trade. The Court found that the additional information expressed in Mr. Anashara's affidavit and oral testimony is important because it provides date, location, and context to his evidence that sales of wares displaying the Mark took place on January 1, 2011.
Noting that the burden to demonstrate use is not high, the Court found that the new evidence would have made a difference to the Registrar on both the transfer of wares and the normal course of trade issues. This is so because it would have resulted in a finding that, in response to the notice with respect to the wares, the sale of wares on January 1, 2011 met the requirements of s. 4(1) of the Act. In the Court's opinion, the Registrar would have maintained the registration for the following wares: t-shirts, jeans, scarves, hats, sports bags, pullovers, shoes, and jackets, and so ordered to set aside that portion of the Registrar's decision.
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