Executive Summary: Key Legal and Evidentiary Issues

• Window World International, LLC sought leave under subsection 56(5) of the Trademarks Act to file new evidence in appeal proceedings involving the WINDOW WORLD trademarks.

• The Registrar's earlier decision partially deleted "installation of replacement windows" from the registered services while maintaining "retail store services featuring replacement windows."

• Proposed new evidence included website access data from the Visualizer tool, a franchisee affidavit, and excerpts of Canadian provincial franchising legislation.

• Only a portion of the Second Bauer Affidavit (paragraphs 1–5 and Exhibit A) was admitted, as the Court found it relevant to the Registrar's inference about Canadian users of the Visualizer.

• After-the-fact speculation by a US-based franchisee about hypothetical willingness to serve Canadian customers was deemed insufficient to meet the relevance and materiality components of the leave test.

• Costs were awarded in the cause given the divided success and the novelty of the new leave requirement under subsection 56(5) of the TMA.

Background and parties involved
This case arises from a trademark dispute between Trademark Building Products Inc. (TBPL) and Window World International, LLC (WW) before the Federal Court of Canada, decided on February 23, 2026, by Justice Angela Furlanetto. At issue were the WINDOW WORLD and WINDOW WORLD & Design trademarks (Registration Nos. TMA947806 and TMA947807), which were registered in association with retail store services featuring replacement windows and installation of replacement windows.

The Registrar's earlier decision
In a decision dated March 17, 2025, the Registrar of Trademarks partially deleted the services registered in association with the WINDOW WORLD Marks following section 45 proceedings initiated by TBPL. The Registrar deleted "installation of replacement windows" from the registrations but maintained "retail store services featuring replacement windows," finding that WW had demonstrated use of the marks in Canada in connection with those retail services during the relevant period of August 28, 2020 to August 28, 2023. The Registrar relied on inferences drawn from evidence that WW's proprietary Window Visualizer Design Center software was accessible to Canadian users via WW's website, www.windowworld.com. The Visualizer allowed customers to upload photographs of their homes and experiment with different windows, sidings and door designs, and to obtain instant visualizations of different colour and style options. A franchisee could also interact with customers during virtual consultations. The Registrar found that from 2019 to the date of the affidavit before the Registrar, WW's website had approximately 200 registered users from Canada.

The cross-appeals
Both parties appealed aspects of the Registrar's decision. In docket T-1637-25, TBPL sought to expunge the WINDOW WORLD Marks entirely, challenging the Registrar's finding that retail store services had been used. In dockets T-1644-25 and T-1645-25, WW appealed the deletion of installation services. A fourth docket, T-2774-25, involved WW's appeal of a separate Trademarks Opposition Board decision, dated June 2, 2025, which refused registration of the trademark WINDOW WORLD filed under Trademark Application No. 1,855,788. WW clarified at the hearing that it was not seeking leave to file new evidence in that matter.

The motion for leave to file new evidence
WW brought a motion under subsection 56(5) of the Trademarks Act for leave to introduce three new affidavits on appeal. The test for leave, as articulated in Products Unlimited, Inc v Five Seasons Comfort Limited, 2026 FC 48, considers: (a) the relevance, credibility, and admissibility of the evidence; (b) the materiality of the evidence; (c) the circumstances surrounding the delay in filing the evidence; and (d) whether granting leave would cause prejudice to the opposing party.

The Second Bauer Affidavit and website access data
The first piece of proposed new evidence was the Second Bauer Affidavit, which contained two website access reports. These reports purportedly showed that 647 users from Canada accessed the Visualizer on the WW website between January 4, 2023 and August 28, 2023, and that 2,663 users from Canada accessed the Visualizer on the WW website from January 4, 2023 to September 25, 2025. WW argued this data confirmed the inferences made by the Registrar relating to the use of the Visualizer by Canadian users during the relevant period. Although TBPL contended that the reports were hearsay and provided no information as to what visitors may or may not have done while visiting the website, or as to what the numbers on the report meant, the Court found this evidence relevant to the Registrar's inference and sufficiently material to meet the leave test. The Court accepted WW's explanation regarding its technical inaccessibility to the data at the time of the section 45 proceedings. Paragraphs 1–5 and Exhibit A of this affidavit were admitted.

The Anckner Affidavit and the franchisee's hypothetical willingness
The second piece of proposed evidence was the Anckner Affidavit from Aaron Anckner, the Owner and Governor of AA Remodeling, LLC, d/b/a Window World of North Puget Sound (WWNPS), a Washington limited liability company and franchisee of Window World, Inc. (WWI), WW's exclusive licensee. In the Decision, the Registrar had found that WWI held an exclusive license from WW to use and sublicense others to use the WINDOW WORLD Marks, and it was undisputed that WW exerted sufficient control over WWI's use such that use under the license would be to the benefit of WW. Mr. Anckner stated that during the relevant period, he had discussions with WWI about establishing a franchise location in Vancouver or Victoria or performing services there, but this never materialized, and it was later determined that these locations were "not an appropriate fit" for his business. He attested that if a Canadian customer from Vancouver or Victoria had contacted his company by telephone, through online virtual consultation, through the Visualizer, or by an in-store visit during the relevant period, his company would have sold the customer new and replacement windows and would have offered to install them at the customer's location directly or through a Canadian sub-contractor. The Court found this after-the-fact speculation insufficient to meet the relevance and materiality components of the leave test. Unlike the precedent in Wenward (Canada) Ltd v Dynaturf Co, 1976 CanLII 2656, where the trademark owner relied on copies of letters relating to inquiries made for various projects in Canada indicating the owner was prepared to send crews to Canada, Mr. Anckner's affidavit contained no direct evidence from the relevant period indicating that WWNPS was willing and able to perform installation services for replacement windows in Canada, or that they entertained any inquiries to do so. The Court also noted that mere advertising of services in Canada through a website will not constitute use in association with services; there is also a requirement to show a degree of interactivity with Canadian consumers during the relevant period. The related portions of the Second Bauer Affidavit (paragraphs 6–10 and Exhibits B and C), which purportedly showed that 37 active users from Canada accessed the franchisee's website between January 4, 2023 and August 28, 2023, were similarly refused, as the evidence did not establish any connection between access to the franchisee's website and the specific installation services in question.

The Third Bauer Affidavit and the special circumstances argument
The third piece of proposed evidence was the Third Bauer Affidavit, which attempted to bolster WW's argument that ongoing litigation with TBPL constituted special circumstances excusing non-use of the marks for installation services. Mr. Bauer referred to certain passages of legislation allegedly from British Columbia, Ontario, New Brunswick, Alberta, Manitoba and Prince Edward Island relating to franchising, but did not attach any of the legislation to his affidavit, nor provide any other explanation in association with these passages. He also referred to a pending trademark application filed by TBPL in Canada to register WINDOW WORLD for use in association with overlapping services, and to ongoing proceedings with TBPL in the Federal Court (T-1325-21), though limited information was provided and no documents were attached. The Court found this affidavit did not meet the materiality aspect of the leave test, as the legislation referenced was insufficient as excerpted to establish any legal obligations, and the remainder of the affidavit did not address the primary deficiency noted in the Decision — namely, that the evidence did not detail "the legal franchising frameworks the Owner would necessarily contravene." No explanation was given as to why this evidence was not provided during the section 45 proceedings, and in this context, the Court determined that further flexibility could not be extended.

The ruling and outcome
The Court allowed the motion in part. WW was granted leave to serve and file only paragraphs 1–5 and Exhibit A of the Second Bauer Affidavit, consisting of the Visualizer access data from the WW website. The remainder of the proposed evidence — the Anckner Affidavit, paragraphs 6–10 and Exhibits B and C of the Second Bauer Affidavit, and the Third Bauer Affidavit — was refused. As success was divided on this motion and considering that this is one of the first cases dealing with the new leave requirement under subsection 56(5) of the TMA, Justice Furlanetto awarded costs in the cause, declining TBPL's request for costs in the amount of $10,000 irrespective of the outcome. No specific monetary award was ordered in favour of either party.