Background:

• Vermillion Networks Inc. (VNI) appealed decisions of the Registrar of Trademarks which amended VNI’s trademark registrations by deleting certain goods and services due to lack of evidence of use during the relevant periods.

Key Issues on Appeal:

1. Appropriate standard of review.
2. Materiality of new evidence.
3. Establishment of use of the marks for the disputed goods and services during the relevant periods.

Court’s Analysis and Decision:

• The court undertook a de novo review of the decisions, assessing new evidence to determine if it would have materially affected the Registrar’s findings.
• The court found the new evidence, including affidavits and documentation, to be material, filling gaps identified by the Registrar and demonstrating use of the trademarks in association with certain goods and services.
• While the court allowed the appeal in part, confirming use of the marks for many goods and services, it did not restore all services previously struck by the Registrar due to insufficient evidence of use for specific service categories.

Outcome:

• The appeal was allowed in part, with the court directing maintenance of the trademark registrations for the goods and services for which sufficient new evidence of use was presented.
• Certain goods and service descriptions were fully restored, while others, for which no new evidence of use was provided or where the evidence was insufficient, remained deleted from the registration.
• No costs were awarded in the decision.