On March 31, 2026, the Federal Court of Canada (the Court) issued its decision in Ecovacs Robotics Co., LTD. v American Air Filter Company Inc., 2026 FC 329, allowing the appeal in part of a decision of the Registrar of Trademarks to expunge the registration for AIVI Design trademark (the Mark) for failure to file evidence in response to a Section 45 notice.
The Appellant asserted that for “reasons unknown” it never received the Section 45 notice, and it sought leave to file new evidence on appeal. The Respondent did not oppose the introduction of the evidence and did not cross-examine the affidavit evidence.
On the issue of leave, the Court applied the test recently confirmed in Products Unlimited, Inc. v Five Seasons Comfort Limited, 2026 FC 48, where subsection 56(5) of the Trademarks Act —which introduced a leave requirement for new evidence on appeal—was considered for the first time since its enactment on April 1, 2025 (as previously reported by the E-TIPS® Newsletter here).
The Court granted the Appellant leave to file its evidence on the basis that it was credible and uncontradicted, it would have materially affected the Registrar’s decision, and there was minimal prejudice to the Respondent.
The Court conducted a de novo review of the evidence and concluded that the evidence established that the Mark had been used during the relevant period, but that it did not show use of the Mark in association with all of the registered goods. Thus, the Court ordered that certain goods be deleted from the registration.
Summary By: Michelle Noonan
E-TIPS® ISSUE
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