A recent decision of Canada’s Federal Court in The Black & Decker Corporation v. Method Law Professional Corporation 2016 FC 1109 serves as a reminder of the non-use procedure outlined in Section 45 of the Canadian Trade Marks Act, and of the low burden of proof required to satisfy the test set out in this provision.

The case dealt with a trademark registration for PIRANHA, which covered both power saw blades and circular saw blades. The Registrar held that the evidence of the registered owner in association with the power saw blades was ambiguous, and that there was no proof of actual sales having been made, and ordered that this part of the registration was therefore to be deleted.

On appeal, new evidence was filed which relieved any ambiguity in the evidence and which clearly established that there had been use of the trademark on both of the listed goods. However, Justice Diner went further and explicitly held that it was not necessary to provide invoices in Section 45 cases, and that the failure to provide invoices should not have been determinative in this case. He also stated that ambiguities in the evidence should be resolved in favour of the registered owner.

This case therefore serves as a reminder to parties facing Section 45 challenges to their trademark registrations that while a simple statement that the trademark is in use is not sufficient, there is a low evidentiary threshold to show that the trademark is in use in Canada.