Federal Court Dismisses Appeal In Trademark Expungement Action Despite Filing of Further Evidence

On August 1, 2025, the Federal Court (the Court) in Power Herbs Wellness Trading Corporation v Svenskt Kosttillskott AB, 2025 FC 1348, dismissed Power Herbs Wellness Trading Corporation’s (Power Herbs) appeal of the Registrar of Trademarks’ (the Registrar) decision to expunge its Healthvell & Design trademark (the Mark).

In response to a request from Svenskt Kosttillskott AB, the Trademarks Opposition Board (the Board) issued a notice under section 45 of the Trademarks Act requiring Power Herbs to show use of the Mark in association with the goods and services specified in the registration (i.e., certain supplements and advertising services, among others). In response, Power Herbs filed a statutory declaration with five exhibits. The Board held that there was not enough information that allowed it to infer correlations between the products referenced in the evidence and any of the registered goods, and that the evidence failed to demonstrate use in association with the registered services. The Registrar expunged the Mark, finding that Power Herbs failed to demonstrate use of the Mark.

On appeal, Power Herbs filed a second affidavit with the following new evidence: a letter and invoices from a manufacturer to demonstrate product manufacturing in association with the Mark since July 2018, Amazon webpage printouts showing the product for sale and sales trends, labels for goods with the Mark, and Health Canada webpages which confirmed the approval and association of the Mark with registered goods.

The Court considered the new evidence and found that only the Amazon webpages and labels displayed the Mark; however, neither showed that the Marks appeared on products sold in Canada during the relevant time. The Court found that the evidence did not overcome the deficiencies found by the Registrar, noting that it was unclear what specific goods with respect to the registration were being shown.

The Court found that the Registrar did not make a palpable and overriding error in concluding that Power Herbs failed to provide evidence sufficient to meet the threshold required for a section 45 proceeding and accordingly dismissed the appeal.

Summary By: Uday Bahal