Federal Court Allows Appeal From Decision Expunging FRUITFLOW Trademark Registration Based On New Evidence

On February 21, 2025, the Federal Court of Canada (the Court) issued its decision in Provexis Nutrition Limited v. Robichaud, 2025 FC 347, allowing an appeal from a decision of the Trademarks Opposition Board (TMOB) expunging Provexis Nutrition Limited’s (the Applicant’s) trademark registration for FRUITFLOW & Design (the Mark).

The Mark was the subject of non-use cancellation proceedings under Section 45 of the Trademarks Act (the Act), which required the Applicant to demonstrate use of the Mark between 2019 to 2022 in association with its registered goods, namely, nutritional substances, dietetic additives, and vitamin preparations (collectively, the Challenged Goods); and non-alcoholic beverages (the Unchallenged Goods). The Applicant’s evidence of use included sample product packaging with the Mark, but it displayed the name “Provexis plc” as the owner of the Mark rather than the Applicant’s name. The Applicant also provided evidence of the Mark in association with six other legal entities without clearly explaining how they related to the Applicant. The TMOB found it unclear from the Applicant’s evidence whether use of the Mark enured to the benefit of the Applicant and, therefore, expunged the Mark. The Applicant appealed the TMOB’s decision with respect to only the Challenged goods.

On appeal, the Applicant filed new evidence to address the apparent evidentiary gaps, which the Court found material and decided to consider the matter de novo.

The Court found that the new evidence filed by the Applicant provided a clear explanation of the structure and relationship between the Applicant and certain legal entities referenced in its initial evidence. In light of this new evidence and recognizing that the threshold for establishing “use” in a section 45 proceeding is “quite low,” the Court found that the Applicant had established use of the Mark in connection with the Challenged Goods. The Court also noted that the incorrect naming of “Provexis plc” as the owner of the Mark on the sample packaging did not detract from the Applicant’s position to prove use under the Act, explaining that an owner’s disclosure of its identity on product packaging is voluntary under the Act.

This led the Court to allow the appeal and maintain the Mark’s registration with respect to the Challenged Goods.

Summary By: Claire Bettio