Executive Summary: Key Legal and Evidentiary Issues

• Appeal focused on whether Provexis Nutrition Limited demonstrated use of its trademark in Canada during the relevant period.

• Registrar’s cancellation was based on evidentiary gaps concerning ownership, licensing, and control of the mark.

• New affidavit clarified corporate relationships and licensing structure within the Provexis Group.

• Court found oral licensing and control through shared directors sufficient to establish deemed use.

• Evidence of Canadian sales and product packaging bearing the trademark supported continued registration.

• Trademark maintained for supplements; expunged for non-alcoholic beverages due to non-appeal.

Facts and outcome of the case

Background and procedural history
Provexis Nutrition Limited filed an appeal under section 56(1) of the Trademarks Act to challenge a decision by the Registrar of Trademarks, which had ordered the cancellation of its trademark registration (No. TMA975,381) under section 45 for non-use. The cancellation stemmed from a request by the respondent, Andrews Robichaud, who claimed the mark had not been used in Canada during the required three-year period. The Trademarks Opposition Board agreed, citing weak evidence about actual use and ownership by the applicant.

The trademark and goods at issue
The trademark in question was “FRUITFLOW & Design,” registered for a range of nutritional and beverage products. Provexis only appealed the decision with respect to certain goods—specifically, nutritional supplements and additives for cardiovascular health. The unchallenged goods, such as fruit juices and non-alcoholic beverages, were left out of the appeal and thus automatically expunged.

Registrar's decision and its flaws
The Registrar rejected the applicant's initial evidence, noting it was unclear which corporate entity actually owned or used the mark. The documents referenced several related companies—Provexis Nutrition Limited, Provexis plc, and Provexis Natural Products Limited—without clearly explaining their relationships. The Registrar also pointed out that no written licence was provided and that product packaging identified a different company as the trademark owner.

The new evidence and its impact
On appeal, Provexis submitted a second affidavit from its director, Ian Ford, which clarified the corporate structure. It confirmed that Provexis plc and the applicant were subsidiaries of the same parent company, and that the applicant owned the mark and granted oral licences to affiliated companies, maintaining control through shared management. This new evidence addressed the Registrar’s concerns by showing sufficient control and a licensing relationship that could satisfy section 50(1) of the Act.

Court’s analysis and findings
The Federal Court held that the new affidavit was material and filled the evidentiary gaps in the original record. It accepted that the Fruitflow+ product was sold in Canada bearing the registered mark, and that the mark’s use could be attributed to the applicant due to proper control. The court emphasized that the standard for establishing use in a section 45 proceeding is relatively low. However, it found the evidence regarding sales of the Optiflow product by Bricker Labs insufficient due to lack of invoices or detailed proof.

Final decision
The court allowed the appeal and set aside the Registrar’s decision in part. It maintained the trademark registration only for nutritional supplements and related health products. All unchallenged beverage-related goods were removed from the registration. No costs were awarded, and the respondent did not participate in the appeal.