On October 20, 2025, the Federal Court of Canada (the Court) issued its decision in Big Duck Games, LLC v X-Flow Ltd., 2025 FC 1704, allowing Big Duck Games, LLC’s (BDG’s) appeal of a Registrar of Trademarks’ (the Registrar’s) decision expunging its FLOW trademark (the Mark).
In response to a request from X-Flow Ltd., the Registrar issued a notice under section 45 of the Trademarks Act (the Act) requiring BDG to show use of the Mark in association with its registered goods (i.e., video games for mobile phones and related goods) between May 2021 and May 2024. The Registrar later issued a decision to expunge the FLOW registration following BDG’s failure to respond to the notice. BDG appealed this decision, filing new evidence addressing why it failed to respond to the Registrar’s notice and demonstrating use of the Mark within the relevant period.
As a preliminary matter, the Court considered whether BDG’s new evidence was subject to amended subsection 56(5) of the Trademarks Act, which came into force on April 1, 2025, and requires leave to file additional evidence when appealing the Registrar’s decision to the Federal Court. Relying on a recent decision on the matter (as reported on by the E-TIPS® Newsletter here), the Court found that BDG was not subject to the new leave requirement because its Notice of Application was filed prior to April 1, 2025.
The Court found BDG’s new evidence to be material and conducted a de novo review. The Court accepted BDG’s explanation that it did not file any evidence in the section 45 proceeding because it was not aware of the Registrar’s notice until after the Registrar had issued its decision. The Court further found that BDG’s new evidence of screenshots with the Mark appearing in connection with mobile games downloaded in Canada demonstrated use of the Mark with the registered goods, except for physical consoles. Notably, the Court acknowledged that, though much of the new evidence was from outside the relevant period (e.g., screenshots taken in April 2025), this was still acceptable given the nature of the goods in this case as it is not possible to capture what has historically appeared on mobile devices.
The Court allowed the appeal, setting aside the Registrar’s decision and maintaining the registration, except for references to physical consoles.
Summary By: Claire Bettio
E-TIPS® ISSUE
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