The Electrical Safety Authority (ESA) applied for and was granted registration of the mark DIG SAFE as an official mark pursuant to section 9(1)(n)(iii) of the Trade-marks Act (Official Mark). The basis for the application was a copy of ESA’s Spring 2010 newsletter, which showed the Official Mark. Cable Control had previously registered the trade-mark DIG SAFE & Design. Cable Control commenced this application for judicial review of the Registrar’s decision on the basis that ESA did not meet its
burden to demonstrate that it had adopted and used the Official Mark.
Cable Control argued that the Official Mark was not used by ESA but that ESA was promoting the activities of other organizations. The Court held that the Registrar’s decision was not unreasonable. The Registrar was not required to investigate the use by others of the same mark; ESA was only required to demonstrate that it is a public authority, and that it has adopted and used the mark.