Coors has argued that a recent decision of the Federal Court (TheThymes, LLC v Reitmans Canada Limited, 2013 FC 127) means Anheuser could not apply for a registration in Canada based on intended use and then amend the application to rely on a USA application. The Federal Court disagreed, and dismissed the application for expungement.
As background, the Court found that Anheuser had filed a trade-mark application in the USA for GRAB SOME BUDS, based on intended use. Anheuser commenced use in the USA on September 24, 2010, and received registration on March 8, 2011. In Canada, Anheuser filed on September 14, 2010, based on its intent to use the mark in Canada. On February 9, 2011, before the application was advertised, Anheuser amended its application to withdraw the proposed use in Canada as the basis for registration and substituted the prior registration or application for registration in the USA as the basis.
The Court distinguished the earlier Thymes decision, holding that the bases for expungement under section 57 are narrower than those which might give rise to a successful opposition under section 38. The Court further found that none of the four statutory grounds for invalidating a registration were present here, and there were no misstatements made that can form the basis of a ground of invalidity.