Canadian trademark owners facing a "use" challenge must provide clear, specific, and time-relevant evidence to show use of the trademark—or risk losing their registration. The Federal Court's decision in Power Herbs Wellness Trading Corporation v. Svenskt Kosttillskott AB makes it clear that weak or ambiguous evidence will not meet the legal threshold for proving use of the trademark.
In this case, the owner of the "Healthvell & Design" mark relied on Amazon webpage printouts, product labels, manufacturer invoices, and Health Canada webpages in an attempt to show use of the trademark. The Court found the owner's evidence failed to connect the mark to products sold in Canada during the relevant three-year period, and in some cases, it was unclear which goods were even being shown.
This decision is yet another reminder that trademark owners must use their trademarks to preserve their rights and that in a Section 45 challenge, trademark owners must be able to present solid, direct evidence rather than relying on assumptions or indirect proof. Third-party webpages, generic references to the products, and undated images may not necessarily be sufficient to establish trademark use.
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