The trade-mark “SPEED QUEEN” was originally registered in 1941 for wares and services including laundry washing machines and laundry dryers. The Mark was acquired by Whirlpool in 2004. Alliance requested the Registrar issue a notice pursuant to section 45 of the Trade-marks Act to show use between October 5, 2008 and October 5, 2011. The registrar maintained the Mark and Alliance appealed to the Federal Court.
On the appeal Alliance argued that the respondent had not met its evidentiary threshold: the how, where and when the trademark has been used. It was argued the evidence did not show a transaction in the normal course of trade, and that the photos of the wares did not show the Mark prominently on the wares. It was further argued that the evidence of use was a 10-year summary that did not provide details for the relevant period.
No new evidence was filed on appeal, and thus on the standard of reasonableness, the Court found that although the evidence could have been better, the outcome fell within the range of acceptable outcomes defensible in fact and in law.