This is an appeal from a decision of the Registrar who refused to expunge the Respondent’s mark pursuant to section 45 of the Trademarks Act. The mark STK (the “Mark”) was registered in 2008 for a high energy, female-friendly steakhouse.
In the three years after it was registered the Mark was never used, although there were discussions with various hotels and property owners to open a STK establishment in Canada. It was submitted that after the recession all those deals fell through.
The Court found on the evidence that while the discussions with hotels and property owners fell through, there was not enough to support a finding that the non-use of the Mark was attributable to decisions made by third-parties. The Court also found that the process of opening an establishment can take years, and this is not uncommon, unusual or exceptional. It was described that Parliament’s intent was to provide three years to commence use in Canada, and beyond that there must be something out of the ordinary to explain non-use, but there was nothing out of the ordinary here.
The appeal was allowed, and the registration for the Mark was expunged.