Federal Court Grants Leave to File Fresh Evidence in Trademark Appeal

On September 4, 2026, the Federal Court (the Court) issued its decision in Anashara v BIZU Innovation Group, 2026 FC 1132, allowing the appeal in part of a decision of the Registrar of Trademarks (the Registrar) to expunge the registration for SWAGGER (the Mark) for failure to file evidence in response to a Section 45 notice (the Notice) brought under the Trademarks Act.

The Applicant, Mr. Anashara, registered the Mark in association with (1) t-shirts and pullovers; and (2) men’s, women’s and children’s apparel, footwear and accessories. On February 16, 2024, at the request of BIZU Innovation Group, the Registrar sent the Notice to the Applicant pursuant to subsection 45(1) of the Trademarks Act, requesting evidence of use of the Mark in association with its registered goods during the preceding three years. The Registrar did not receive any evidence and, on October 8, 2024, issued its decision to expunge the Mark.

In appealing the Registrar’s decision to the Court, the Applicant asserted that he did not receive the Notice and, therefore, did not file any evidence of use before the Registrar. However, he filed new evidence on appeal.

The Court determined that the version of subsection 56(5) of the Trademarks Act applicable to the appeal permitted the Applicant to file new evidence. The Court then held that, as there was no evidence before the Registrar when the expungement decision was made, the Applicant’s new evidence filled a gap and was material to the issue. Therefore, the Court conducted a de novo review of the issue of use based on the new evidence.

The Court noted that the burden on a trademark owner to demonstrate use of a trademark is not a heavy one and the kind and extent of evidence required may vary in each case. However, mere assertions of use are insufficient. The Applicant provided photographs and invoices as evidence to support use of the Mark in trade, which the Court cumulatively considered and found to show use of the Mark with certain associated goods. However, the Court concluded that the evidence was insufficient to establish use in association with all of the goods associated with the Mark’s registration. Accordingly, the Court set aside the Registrar’s expungement decision and reinstated the Mark for a revised, narrowed list of goods.

Summary By: Uday Bahal