Brouilette Kosie Prince v. Great Harvesting Franchising, Inc. involved two Appeals under section 56 of the Trade-marks Act from decisions of the Opposition Board.  The Appellant had sought, unsuccessfully, to have the Registrar expunge two trademarks pursuant to section 45 of the Act, namely two design trademarks, both for GREAT HARVEST BREAD CO. & DESIGN.  The one was registered for use in association with the services of “operation and franchising of retail bakery shops”.  The second was registered for the same services, as well as services described as “franchising services, namely offering technical assistance in the establishment and/or operation of retail bakeries and retail bakery shop services” and wares described as “bakery goods, namely bread, cookies, muffins, and cinnamon rolls; wheat; jams and jellies; clothing, namely hats, sweatshirts, aprons, t-shirts and sweaters”.

The Federal Court agreed with the Opposition Board that the one mark registered solely in respect of the services could be maintained in its entirety and the other could be maintained in part.

In the course of the section 45 proceeding, the owner of the trademark had provided a Statutory Declaration that included two photographs (the first showing bread baskets sitting on a portable table in a mall, with a banner pinned to the table and the second showing the banner with the trademark in full), a page from a booklet regarding how to become a franchisee, and four labels, together with invoices of sales for one particular day in the three-year period preceding the Section 45 Notice.  No further evidence was provided by the owner of the trademark on the Appeal.

The Court noted that the standard of review was one of reasonableness and went on to consider the evidence.  The Appellant’s key argument focused on whether the evidence was sufficient to establish use in accordance with section 45. With regards to the claimed services, the Court was satisfied that distribution of advertising material was sufficient to show use of the trademark in association with franchising services and that there was no need to show that actual franchises had been established. The only actual use in association with the claimed services was the operation of a “temporary bakery” in the Lethbridge Mall, but that was sufficient.  With regards to the claimed wares, the mark had only been used in association with bread. Although all sales of the bread occurred on the same day, that was also sufficient.  The burden on the owner on a section 45 proceeding is not onerous so long as there is some use within the three-year period preceding the section 45 Notice.

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