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In the recent decision of Chilly Moose Ltd. v. Moosehead Breweries Limited, the Trademarks Opposition Board (TMOB) accepted the admissibility of an electronically notarized affidavit and awarded costs for unreasonable conduct during the proceeding.
Chilly Moose (the Requesting Party) had sought to expunge for non-use a registration for the mark MOOSE owned by Moosehead Breweries (the Owner). In response, the Owner filed an affidavit that showed use of the mark in Canada during the relevant period.
The Requesting Party argued that the affidavit was defective because it had been electronically notarized, which was alleged to be in breach of mandatory Canadian legal requirements. The TMOB rejected this argument, noting that the Requesting Party failed to identify any specific legal requirement that had been breached. The TMOB also referred to its stated practice of accepting affidavits commissioned remotely as long as they comply with the requirements of the jurisdiction where they are sworn.
The TMOB ultimately admitted the evidence and concluded that the Owner had established use of the trademark MOOSE during the relevant period.
A significant aspect of the decision was the issue of costs. The Owner sought costs on the basis that the Requesting Party has engaged in unreasonable conduct that caused undue delay or expense. The Owner pointed to the numerous inaccuracies in the Requesting Party’s written representations, including citations to irrelevant authorities, references to nonexistent exhibits, and misquotations of legislation.
The TMOB noted that parties, whether represented by counsel or self-represented, remain responsible for verifying the accuracy of their submissions and concluded that the Requesting Party’s submissions unduly complicated the conduct of the proceedings. The Requesting Party’s conduct was found to be unreasonable, and the Owner was awarded costs.
The decision serves as an important reminder that electronically notarized affidavits are generally acceptable before the TMOB when properly executed and that using inaccurate legal citations may expose a party to costs.
The decision may be found here.
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