Trademark owners who have their registration expunged for failing to file evidence of use in a section 45 proceeding may be permitted to file additional evidence and have their registration reinstated on appeal, particularly where the failure to file evidence was through no fault of their own.
This is precisely what occurred in the recent decision of Lion Corporation v MBM Intellectual Property Agency, 2026 FC 1127. In the underlying section 45 proceeding, Lion Corporation’s trademark registration was expunged for failure to file evidence of use. As now required under section 56(5) of the Trademarks Act, Lion Corporation then sought leave from the Federal Court to file additional evidence in the appeal. Specifically, Lion Corporation sought to file affidavits describing why the initial failure to file evidence occurred and showing that Lion Corporation’s trademark had been used in association with the registered goods in Canada during the relevant three-year period.
The Court granted Lion Corporation leave to file its additional evidence on the grounds that leave was ultimately directed at the interests of justice, considering the factors previously identified by the Court in Products Unlimited, Inc v Five Seasons Comfort Limited, 2026 FC 48 – namely, the relevance, credibility, and admissibility of the evidence; the materiality of the evidence; the circumstances surrounding the delay in filing the evidence; and the prejudice that granting leave would cause to the opposing party.
The key affidavit was that of the General Manager of Lion Corporation’s Intellectual Property Department. The affidavit described certain administrative errors made by Lion Corporation’s local trademark agent in Japan that resulted in Lion Corporation not being made aware of the deadline to file evidence. The affidavit also provided evidence that Lion Corporation’s trademark had been used in Canada during the relevant three-year period (e.g., photographs of the registered goods being offered for sale in Canadian stores; screenshots of online sales; photographs of packaging and corresponding invoices; etc.).
The Court noted that there could be no prejudice to the Respondent in granting leave because the Respondent took no position in the proceeding and did not attend or participate in the hearing before the Court.
Ultimately, Lion Corporation consented to the removal of certain goods from its registration, and the Court reinstated the registration for the remaining goods.
The full decision can be found here.
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