Executive Summary: Key Legal and Evidentiary Issues

• The applicant failed to provide sufficient evidence of trademark use within the relevant three-year statutory period.

• New evidence submitted on appeal was found inadequate to overcome deficiencies identified by the Registrar.

• Evidence presented (including Amazon screenshots and product labels) lacked proof of Canadian use during the required timeframe.

• Registrar's decision was reviewed on a "palpable and overriding error" standard due to insufficiently material new evidence.

• The court emphasized that vague product references and hearsay from third-party websites do not meet evidentiary standards.

• Applicant’s counsel struggled to clearly establish proper use under sections 2, 4, and 45 of the Trademarks Act.

Facts and outcome of the case

This case involved an appeal brought by Power Herbs Wellness Trading Corporation (“the Applicant”) against a decision issued by the Registrar of Trademarks at the request of Svenskt Kosttillskott AB (“the Respondent”). The dispute centered on Trademark Registration No. TMA 1,078,163 for the mark "Healthvell & Design", which had been expunged due to non-use under section 45 of the Trademarks Act. The Applicant was required to demonstrate use of the trademark in Canada during the period between May 9, 2020, and May 9, 2023.

In response to the Registrar’s notice, the Applicant submitted a statutory declaration and later introduced additional evidence on appeal, including a second affidavit, Amazon sales pages, product labels, invoices from a manufacturer, and Health Canada documentation. The Applicant argued that this evidence showed use of the mark in relation to certain herbal supplements, including shilajit, amla, and diafit products, and sought to amend the registered goods description accordingly.

However, the Federal Court found that the newly submitted materials failed to demonstrate actual use of the trademark in Canada within the statutory period. Screenshots of Amazon listings and product labels did not clearly establish that the trademarked goods were sold in Canada, and the evidence was deemed ambiguous, lacking specificity about the exact goods used in connection with the mark. Hearsay concerns further weakened the probative value of references to Health Canada pages.

The court held that the Applicant’s evidence did not rise to the level required for a de novo review, and thus, the Registrar’s decision was reviewed on a standard of palpable and overriding error. The court found no such error in the Registrar’s conclusion that the Applicant had not met even the low evidentiary threshold for section 45 proceedings. Moreover, the Applicant did not identify any legal errors but relied solely on its deficient evidence.

As a result, the court dismissed the application. Svenskt Kosttillskott AB was the successful party. No costs or damages were awarded in the decision.