New Evidence Filed On Appeal Saves Trademark Registration

On May 29, 2024, the Federal Court (the Court) issued its decision in Red Maple Manufacturing Inc. v Red Maple Bio Inc., 2024 FC 817, setting aside the portion of the Trademarks Opposition Board’s (TMOB’s) decision that ordered the deletion of registered goods from Red Maple Manufacturing’s (RMM’s) trademark registration for RED MAPLE NATURALS Design Mark (the Mark).

Based on the evidence filed, the TMOB maintained the registration for the registered services only, due to insufficient evidence from RMM demonstrating use of the mark in association with the registered goods in the normal course of trade. While RMM’s evidence stated that the Mark had been used in association with goods that were “sold in Canada and exported”, the TMOB held that this was insufficient on its own to demonstrate use in association with the registered goods. The TMOB held that the evidence did not contain information on when such sales or exports occurred, to whom the products were sold or exported, or how the sales or exports occurred.

RMM appealed to the Court and submitted new evidence demonstrating that the Mark at issue was used in association with the goods listed during the period three years prior to the registration, including photos of the product and packaging and invoices.  Red Maple Bio Inc. did not participate in the appeal.

The Court held that this new evidence would have materially affected the TMOB’s decision as it did demonstrate RMM’s use of the Mark in Canada in association with the registered goods in the normal course of trade.  The evidence demonstrated how, when, and to whom RMM used the Mark in association with the sale of the registered goods in Canada during the relevant period.

This led the Court to grant RMM’s appeal and set aside the portion of the TMOB’s decision that ordered the deletion of the registered goods from the application.

Summary By: Amy Ariganello