Federal Court Reinstates Trademark Registration After New Evidence Allowed On Appeal

On April 24, 2026, the Federal Court (FC) in Nielsen Consumer LLC v Toronto-Dominion Bank, 2026 FC 549, granted leave to file new evidence and reinstated Nielsen Consumer LLC’s (Nielsen) TDLINX registration. The registration had been expunged after Nielsen failed to respond to a section 45 notice issued at the request of Toronto-Dominion Bank (TD).

The FC reiterated that the test for granting leave to adduce new evidence under subsection 56(5) of the Trademarks Act was set out in Products Unlimited, Inc. v Five Seasons Comfort Limited (as previously reported by the E-TIPS® Newsletter here). The leave analysis is ultimately guided by the interests of justice and considers several factors, including:

1. the relevance, credibility, and admissibility of the evidence;
2. the materiality of the evidence;
3. the circumstances surrounding the delay in filing the evidence; and
4. whether granting leave would cause prejudice to the opposing party.

Nielsen’s new evidence consisted of an affidavit from a Senior Vice President of its Canadian business entity. The FC found that the first two factors favoured granting leave because the evidence concerned use of the TDLINX mark in Canada and could have materially affected the Registrar’s decision on use. The fourth factor also favoured granting leave as TD did not oppose Nielsen’s request to file new evidence.

On the third factor, Nielsen conceded it received the section 45 notice, but a docketing error caused it to miss the response deadline. Nielsen said it would have taken steps to maintain the TDLINX registration had the deadline been properly noted. The FC noted that while the circumstances surrounding the delay is an important factor, the weight given to this factor will be fact specific. The FC held that, in view of the nature of the evidence proposed, this factor carried less weight here, as TD took no position on the appeal and all other factors favoured granting leave.

Based on the new evidence, the FC found that Nielsen had shown sufficient use of the TDLINX mark for most of the listed goods and services.

Ultimately, the FC allowed Nielsen’s appeal and reinstated its TDLINX registration for the narrowed list of goods and services.

Summary By: Amy Ariganello