Trademark Tools Inc. v. Miller Thomson LLP, 2016 FC 971

The Court dismissed Trademark Tools' appeal of the Registrar’s decision denying its third request for an extension of time to file evidence. Pursuant to subsection 45(1) of the Trade-Marks Act, Trademark Tools was called upon by the Registrar of Trademarks to provide evidence of the use of its trademark within a specified time frame. Following two requests for extensions of time to file this evidence, the Registrar denied Trademark Tools’ third request and expunged Trademark Tools’ trademark for failure to show use.

While Trademark Tools’ new affidavit was admissible at the Hearing, the Court found that it did not provide evidence of use. The Court also noted that the use of a variant of the trademark did not qualify as use. Apart from the use of the word and spelling of “logix”, the updated mark did not maintain the dominate features of the registered trademark. Finally, the Court found that there were no special circumstances that would excuse non-use of the mark at issue. The appeal was dismissed.