Trademark Decisions

Registration for SPEED QUEEN expunged on appeal for not showing evidence of use
Alliance Laundry Systems LLC v. Whirlpool Canada LP, 2015 FCA 232

Alliance has successfully appealed a decision of the Federal Court (2014 FC 1224 and summarized here) that upheld a decision of the Registrar of Trademarks (2013 TMOB 218) which confirmed the registration of Whirlpool's trademark SPEED QUEEN.

The majority of the Court of Appeal held that Whirlpool's evidence of use does not meet the low threshold of evidence required to show use of the trademark at issue in association with Whirlpool's goods. Thus, the appeal was allowed and the trademark SPEED QUEEN was expunged.

The dissent noted that the burden to prove use is not a heavy burden, and thus was not persuaded that the Federal Court judge made a palpable and overriding error in her assessment of the evidence or that she erred in law in concluding that the decision of the Registrar of Trademarks upholding the registration of the respondent's trademarks at issue “SPEED QUEEN” in association with laundry washing machines and laundry dryers was reasonable.

Use of ABSOLUTE SECURITY for use with software found to infringe ABSOLUTE
Absolute Software Corporation v. Valt.X Technologies Inc, 2015 FC 1203

The Federal Court has found that Valt.X has infringed two of the trademarks owned by Absolute.

Absolute had registered ABSOLUTE for use in association with software and services in 2003, and has registered four other marks containing the word absolute. Valt.X began using the term ABSOLUTE SECURITY in association with its software in 2012.

The Court noted counsel for Valt.X was removed from the record, and Valt.X failed to either file and serve a Notice of Appointment of Solicitor or bring a motion for relief pursuant to Rule 120 of the Federal Courts Rules. At the hearing of the matter, it was disclosed that the Respondent retained counsel and commenced an action on September 28, 2015, to expunge Absolute's trademarks. The Court found that Valt.X made a choice to use its financial resources to retain counsel to commence the expungement action, rather than use the funds to retain counsel to appear on this application. In the end, the Court only heard oral submissions from counsel for [extra carriage return] Absolute, but referred to earlier-filed written submissions.

The Court found that Valt.X uses the trademark ABSOLUTE SECURITY with respect to its software, and found that use to be confusing with the Applicant's registered trademark ABSOLUTE and its common law mark ABSOLUTE SOFTWARE. Damages of $2,000 were awarded.