Date: 20260904

Docket: T-3013-24

Citation: 2026 FC 1132

Toronto, Ontario, September 4, 2026

PRESENT: The Honourable Madam Justice Furlanetto

REASONS AND JUDGMENT

I. Overview

[1] This is an appeal from a decision of the Registrar of Trademarks [Registrar] that expunged the Applicant’s SWAGGER trademark, Trademark Registration No. TMA723265, [SWAGGER Mark], pursuant to section 45 of the Trademarks Act, RSC 1985, c T-13 [TMA]. The Applicant asserts he did not receive the Section 45 Notice [Notice] and therefore, did not file any evidence of use before the Registrar.

[2] The Applicant files new evidence on this appeal that he asserts is material and probative of the issues. While I agree that the new evidence warrants a de novo review, I find it insufficient to establish use by the Applicant of the SWAGGER Mark during the relevant period in association with all the registered goods. As such, the application is allowed only in part.

II. Background

[3] The Applicant, Mr. Faisal Anashara, is the owner of the SWAGGER Mark, which was registered for use in association with the following goods [Registered Goods]:

(1) T-shirts and pullovers.

(2) Men’s, women’s and children’s apparel and footwear, namely, shoes, jeans, jackets, t-shirts, scarves, pullovers and hats; accessories namely sports bags.

[4] On February 16, 2024, at the request of the Respondent, BIZU Innovation Group, the Registrar sent the Notice to the Applicant, pursuant to subsection 45(1) of the TMA. The Notice required the Applicant to show that he had used the SWAGGER Mark in Canada in association with the Registered Goods during the three-year period preceding the Notice, namely between February 16, 2021 to February 16, 2024 [Relevant Period].

[5] The Applicant did not provide any evidence of use to the Registrar.

[6] On October 8, 2024, the Registrar issued the Decision and advised the Applicant that the SWAGGER Mark was expunged as of October 8, 2024. The Applicant contends that he received this letter on October 19, 2024 and that this was the first time he became aware of the section 45 proceeding.

[7] The Applicant now appeals to this Court and files his own affidavit [Anashara Affidavit] to allegedly demonstrate use of the SWAGGER Mark.

[8] The Anashara Affidavit appends the following documents as exhibits:

1. Exhibit A: A copy of the registration for the SWAGGER Mark and other correspondence from the Registrar related to the mark;

2. Exhibit B: Photographs of various garments (bags, a t- shirt, hoodie, shirt, toque, scarf, sweatshirt, sweatpants, jeans, sweaters, purse, hat, socks, sneakers, a mask, and a belt) bearing the SWAGGER Mark; an advertisement promoting the “2023 collection” of the “Canadian brand, SWAGGER” at a store called Promo Pig located in Hamilton, Ontario; and several invoices from Promo Pig dated between November 14, 2022 and April 16, 2024 for the sale of certain “Swagger” items;

3. Exhibit C: A photograph of two pages from an application for a SWAGGER & CO. Design mark, application no. 2189889;

4. Exhibit D: A copy of the Respondent’s Notice of Appearance in this proceeding and a letter to the Court explaining the circumstances surrounding service of the Notice of Appearance; and

5. Exhibit E: Partial screenshots from an undated online “who.is” domain name search, stating that “swaggeroriginal.com” was registered as a domain name on September 28, 2007, expiring on September 28, 2025.

[9] The Respondent filed a Notice of Appearance in this appeal but did not file a record. The Applicant has previously been advised, through directions issued by the Court, that the Respondent is not in default.

[10] Each party received notice of the hearing, which was set down for August 17, 2026. However, the Applicant, who is self-represented, did not appear for the hearing. Although the Respondent appeared, they were not permitted to make oral submissions as they did not file a record. In view of these circumstances, the following decision is based solely on the written record.

III. Issues and Standard of Review

[11] While the Applicant’s materials raise questions regarding the Respondent and their activities, the sole issue on a section 45 proceeding is whether the trademark at issue was in use during the relevant period. An appeal to this court does not enlarge the scope of the section 45 inquiry: Meredith & Finlayson v Canada (Registrar of Trade Marks), 1991 CanLII 14352 (FCA) at 412-413.

[12] As mentioned, the Applicant did not file any evidence before the Registrar; however, he has filed new evidence on this appeal. On the basis of the dates of this application, the version of subsection 56(5) of the TMA that is applicable to this appeal is that which was in effect prior to the most recent amendments which came into effect on April 1, 2025. Under the applicable provision, the Applicant had a right to file new evidence. However, as a preliminary issue, the Court is required to consider the materiality of the new evidence and determine whether it is sufficiently substantial, significant and probative that it would have materially impacted the Registrar’s decision such that a de novo review on the basis of the new evidence should be made, rather than review on the appellate standard articulated in Housen v Nikolaisen, 2002 SCC 33: Clorox Company of Canada, Ltd v Chloretec SEC, 2020 FCA 76 at para 21.

[13] Materiality does not require a determination of whether the new evidence would ultimately change the result or outcome. Rather, the question is whether the evidence could have affected the Registrar’s findings of fact or their exercise of discretion: Seara Alimentos Ltda v Amira Enterprises Inc, 2019 FCA 63 at paras 23-25.

[14] As there was no evidence before the Registrar at the time the Decision was made, in my view, the Applicant’s new evidence fills a gap and meets the relevant criteria. As such, a de novo review of the issue of use based on the new evidence is warranted.

IV. Analysis

[15] The burden on a trademark owner to demonstrate use of a trademark during the relevant period is not a heavy one. A trademark owner need only provide an affidavit or statutory declaration that sets out sufficient facts for which a reasonable inference can be made that the requirements of use set out in section 4 of the TMA have been met: Ecovacs Robotics Co, Ltd v American Air Filter Company, Inc, 2026 FC 329 [Ecovacs] at para 26, citing to Spirits International BV v BCF SENCRL, 2012 FCA 131 [Spirits International] at paras 7-8; Cosmetic Warriors Limited v Riches, McKenzie & Herbert LLP, 2019 FCA 48 at para 10.

[16] Subsection 4(1) of the TMA provides the following definition of “use” of a trademark in association with goods:

[17] While the kind and extent of evidence may vary in each case, mere assertions of use are not sufficient to demonstrate use in the context of a section 45 proceeding: Plough (Canada) Limited v Aerosol Fillers Inc, 1980 CanLII 4344 (FCTAD) at 684. Sufficient facts must be adduced to allow the Court to find that use of the trademark in association with each of the registered goods occurred during the relevant period: Ecovacs at para 27, citing to Miller Thomson LLP v Hilton Worldwide Holding LLP, 2020 FCA 134 at para 10. Further, the registered owner must show that it used the trademark during the relevant period, or that the trademark was used by another person whose use accrued to the owner’s benefit: Ecovacs at para 27, citing to Spirits International at para 7.

[18] In this case, the Applicant provides limited evidence to support his alleged use of the SWAGGER Mark. While some inferences can be made to support use of the trademark with respect to certain of the Registered Goods during the Relevant Period, the evidence is insufficient to support the full list of Registered Goods.

[19] The affidavit states that the Applicant has used the SWAGGER Mark on products and continues to use the mark. As noted, the Applicant provides photographs of different garments that bear the SWAGGER Mark printed on the product itself or on the product label, a 2023 advertisement for the SWAGGER brand in association with the Promo Pig store, and invoices from sales made by Promo Pig. The invoices are dated during the Relevant Period and are for the sale of certain items identified in the description as “Swagger” printed goods.

[20] It is trite law that use may be satisfied where goods pass through an intermediary during the normal course of trade (i.e., a wholesaler or retailer): Manhattan Industries Inc v Princeton Manufacturing Ltd, 1971 CanLII 2144 (FC) at 16-17. Here, while there is no express statement regarding the relationship between the Applicant and Promo Pig, the Applicant refers to Promo Pig as carrying SWAGGER products during the Relevant Period. He also provides a copy of an advertisement urging people to visit the Promo Pig store in Hamilton, Ontario to shop the latest 2023 collection of his SWAGGER brand in store, with quantities available but in limited amounts. From this evidence, it can be reasonably inferred that during the Relevant Period Promo Pig was a retailer selling goods bearing the SWAGGER Mark.

[21] However, neither the photographs nor the advertisement is sufficient to satisfy the evidentiary requirements to establish use under subsection 4(1) of the TMA. A mere assertion that goods were made available for purchase in Canada is not enough: Kazar Group Spólka z ograniczona odpowiedzialnoscia v BCF SENCRL/BCF LLP, 2024 FC 2075 at para 20. It must be shown that goods marked with the trademark were transferred in the normal course of trade. Here, the photographs are undated. Even if I can reasonably infer that the SWAGGER items shown in the photographs are reflective of items that were offered for sale during the Relevant Period, the photographs alone do not establish that the goods depicted were transferred in the normal course of trade. Similarly, while the advertisement refers to SWAGGER merchandise as being available for sale in 2023 at Promo Pig, it does not establish a transfer of that merchandise in the normal course of trade: Clairol International Corp et al v Thomas Supply and Equipment Co et al, 1968 CanLII 1280 (CA EXC) at 564-565.

[22] Although invoices can establish the requisite transfer of the goods during the relevant period, the invoices here are limited. The invoices issued by Promo Pig during the Relevant Period explicitly mention sales of only certain “Swagger” items: sweatshirts and hooded sweatshirts, a jacket, a water bottle, tote bags, t-shirts and long sleeves. Further, with the exception of a “men’s” sweatshirt, none of the descriptors refer to items as being either men’s, women’s, or for children.

[23] As noted, the Applicant draws no direct connection between the invoices and the garments bearing the SWAGGER Mark depicted in the photographs. However, on reading the evidence cumulatively, it is reasonable to draw the connection that the sweatshirts, jackets, t-shirts and tote bags shown in the photographs are representative of those SWAGGER items reflected in the invoices. While I am prepared to infer that the SWAGGER garments shown in the photographs could be men’s or women’s, I do not see any children’s apparel reflected in the evidence. Further, based on the limited items referenced in the invoices produced there is insufficient evidence to establish that all goods shown in the photographs were transferred in the normal course of trade during the Relevant Period.

[24] Taken together, the evidence establishes use of only the following Registered Goods during the Relevant Period: (1) t-shirts and pullovers; and (2) men’s and women’s apparel, namely, jackets, t-shirts, and pullovers; accessories namely sports bags. Thus, the expungement decision will be set aside and the registration reinstated but only with respect to the goods noted.

JUDGMENT in T-3013-24

THIS COURT’S JUDGMENT is that:

1. The application is allowed in part. The October 8, 2024 decision of the Trademarks Registrar expunging Trademark Registration No. TMA723265 is set aside and Trademark Registration No. TMA723265 will be restored with the statement of goods amended to read as follows:

(1) T-shirts and pullovers.

(2) Men’s and women’s apparel, namely, jackets, t-shirts, and pullovers; accessories namely sports bags.

2. No costs are awarded.

“Angela Furlanetto”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: