Alliance Laundry Systems LLC v. Whirlpool Canada LP, 2015 FCA 232 (Nadon, J.A., dissenting Scott, J.A.)
October 28, 2015
Bob H. Sotiriadis and Catherine Bergeron of Robic, LLP, for Alliance Laundry Systems LLC (Appellant)
Aaron Rubinoff, Jennifer E. McKay and John Siwiec of Perley-Robertson, Hill & McDougall LLP, for Whirlpool Canada LP (Respondent)
At issue was an appeal of the Federal Court’s decision to uphold the ruling of the Trademarks Opposition Board (the “Board”) in a Section 45 proceeding, which maintained in part, the trademark registration of Whirlpool Canada LP (“Whirlpool”).
Alliance Laundry Systems LLC (“Alliance”) had sought expungement of Whirlpool’s trademark registration for SPEED QUEEN (the “registration”), which was registered in association with various goods and services. The Board held that the registration was to be maintained with respect to washing machines and laundry dryers. On appeal, the Federal Court found that the Board’s decision was reasonable based on the fact that it considered the evidence met the low threshold required to show “use” during the relevant period.
The evidence put forth by Whirlpool included attestations of use during the relevant period, pictures depicting the prominent display of the mark on the washers and dryers, invoices evidencing the sale of the washers and dryers (after the relevant period), and sales figures of $100,504.69 spanning ten years. According to the affiant, a “portion” of the sales over the course of the ten years occurred directly during the relevant period. The Federal Court opined that the assertion that a portion of the sales occurred during the relevant period was general and lacked specificity. Despite this, the Federal Court concluded that there was sufficient evidence to support “use” and meet the low evidentiary threshold.
In its reasons, the Federal Court of Appeal stated that even on a generous review of its content, the evidence did not meet the low evidentiary threshold required to show use. The Federal Court’s judgement was set aside and the Register was directed to expunge the registration. Dissenting, Scott J.A noted that he would dismiss the appeal for the reasons given by the Federal Court.
By: Andrea Pitts, Borden Ladner Gervais LLP