In July 2014, the Trade-marks Opposition Board concluded that Supershuttle International Inc. had not used its registered trade-mark SUPERSHUTTLE in Canada. The mark was registered in association with “airport passenger ground transportation services.” The TMOB noted that while the evidentiary threshold for showing use is low, there must be sufficient facts demonstrating use in Canada.
Supershuttle had presented evidence that the company provided ground transport for 8 million airline passengers worldwide, and that 61,000 Canadians made reservations with the company during the time period relevant to the s. 45 challenge. However, Supershuttle also admitted it did not physically operate ground transportation services in Canada during the relevant period. Despite evidence of advertising and registration services being available in Canada, the registered services were not available in Canada. On that basis, the trade-mark was expunged by the TMOB pursuant to section 45 of the Trade-Marks Act.
On appeal, Supershuttle argued the issue of whether a trade-mark is “used” in Canada is a question of law subject to the standard of correctness. Alternatively, Supershuttle argued that if the reasonableness standard applied, then the TMOB’s decision was unreasonable. Justice Heneghan disagreed on both issues and dismissed the appeal:
 In my opinion, the Officer’s review of the evidence of “use”, his interpretation of the services covered by the registration and the application of the facts to the law to decide whether the mark was “used” in Canada in association with the registered services, are all entitled to deference. The issues in a section 45 proceedings, including “use” pursuant to section 4(2), are well within the expertise of the Officer.
The decision is available here.