Alliance Laundry Systems LLC v Whirlpool Canada LP, 2015 FCA 232
In a decision from the bench, the Federal Court of Appeal allowed Alliance’s appeal and expunged Registration Number UCA15837 for the trade-mark SPEED QUEEN on the basis that the evidence in the underlying s. 45 proceeding was insufficient to prove use of the mark. Writing for the majority, Justice Nadon found that the affidavit evidence furnished by Whirlpool did not, “even on a generous view of its contents, meet the low threshold of evidence required to show use of the trade-mark at issue in association with the Respondent’s goods.”
In dissenting reasons, Justice Scott held that the evidentiary burden imposed on a registrant such as Whirlpool is not a heavy one in s. 45 proceedings under the Trade-marks Act. He found that there was no palpable and overriding error or legal error in the decision below, which had confirmed the registration of the opposed mark.
The Federal Court of Appeal’s brief reasons can be found here.
The underlying decision of the Federal Court can be found here.