Evolving Jurisprudence On Filing New Evidence In Trademark Appeals: Decision # 1

On June 19, 2026, the Federal Court (the Court) released its decision in Enteractive Media Inc. v Gamechanger Media, Inc., 2026 FC 843, dismissing a motion by Enteractive Media Inc. (the Applicant) for leave to file new evidence. The underlying application was an appeal from a decision by the Registrar of Trademarks expunging the Applicant’s GAMECHANGERZ trademark for failing to provide evidence of use.

The Applicant argued that it did not file evidence in response to the section 45 notice (the Notice) because the Notice was not received or was inadvertently misplaced.

The Court applied the test set out in Products Unlimited, Inc. v Five Seasons Comfort Limited (as previously reported by the E-TIPS^® Newsletter here) for granting leave to adduce new evidence under subsection 56(5) of the Trademarks Act.

The Court accepted that the proposed evidence was relevant and material. However, the Court had concerns with the reliability and credibility of the proposed evidence due to inaccuracies in the Applicant’s affidavit evidence.

With respect to the delay in filing the evidence, the Court found that the Applicant was aware of the Notice. The evidence showed that the Notice was delivered by Purolator courier to the Applicant’s address and was signed by the Applicant’s director. The Applicant also received a letter from Gamechanger Media, Inc.’s former counsel referencing the Notice and indicating that evidence needed to be filed.

Consequently, the Court held that it would not be in the interests of justice to allow the Applicant’s proposed evidence to be filed. The Court noted that the Applicant’s shifting evidence regarding the circumstances surrounding the Notice, together with the reliability concerns relating to the proposed evidence, raised significant concerns and weighed against granting leave.

Accordingly, the Court dismissed the Applicant’s motion to file new evidence.

Summary By: Uday Bahal