Expungement Reversed in Part on New Evidence on Nature of Trade

  • November 03, 2015

Anashara v. Swagger Publications Inc., 2015 FC 1241 (Justice Campbell)

November 3, 2015

Faisal Anashara (on his own behalf), (Applicant)
Stephen M. Turk, for Swagger Publications Inc. (Respondent)

This is an appeal from a decision (2014 TMOB 239) of the Registrar of Trade-marks to expunge the mark SWAGGER owned by the applicant pursuant to s.45 of the Trade-marks Act on the basis that ‘use’ was not shown and no special circumstances were shown.

The Court reviewed the evidence before the Registrar and the Registrar’s decision that the evidence did show actual transfer of goods using the mark.

The Court reviewed the new affidavit submitted by the applicant, and the applicant’s oral testimony at the haring and concluded that it did provide important dates and context regarding the sales of wares and the normal course of trade for his small business but did not provide anything new regarding services.

The Court concluded the new evidence would have made a difference to the Registrar on both the transfer of wares during the relevant period and the normal course of trade. The appeal was therefore allowed in part and the trade-mark registration was maintained for certain wares identified in the new evidence.

By: Alan Macek, Dimock Stratton LLP