Background
Enteractive Media Inc. (EMI) held Canadian Trademark Registration No. TMA1108935 for the mark GAMECHANGERZ, registered September 8, 2021, covering a range of goods (electronic and printed publications, promotional items, clothing) and broadcasting and production services focused on sports, daily fantasy, poker, and esports. At the request of Gamechanger Media, Inc., the Registrar of Trademarks issued a Section 45 Notice on November 25, 2024, requiring EMI to file evidence of use of the mark in Canada during the three-year period ending November 25, 2024. EMI filed nothing by the February 25, 2025 deadline, and the Registrar expunged the registration on April 15, 2025.
EMI appealed to the Federal Court, asserting it never received the Section 45 Notice. It brought a motion for leave to adduce new evidence — principally an affidavit from Kelly Kellner (KK), described as EMI’s President and CEO, purporting to demonstrate use of the mark. The motion record was filed by Lynne Kellner (LK), the sole director of EMI and KK’s mother, who swore she had no knowledge of the Notice until she received the expungement decision. However, Purolator courier records subsequently produced through the certified tribunal record showed the Notice had been delivered to LK’s home address on November 28, 2024, and a separate letter from the respondent’s former counsel — delivered January 21, 2025 and signed for by LK — had explicitly warned that failure to file evidence would result in cancellation of the registration.
Cross-examination revealed that LK had discussed the respondent’s letter with KK by telephone, reading it to him verbatim, and had created a separate binder for related documents. KK acknowledged before February 11, 2025 he knew the mark could be cancelled and that action was needed. Additionally, inaccuracies emerged in KK’s proposed affidavit concerning his corporate role and the entities handling customer payments, prompting a secondary motion under Rule 75 of the Federal Courts Rules to amend that affidavit.
The Court’s Holding
Justice Furlanetto dismissed the motion for leave to adduce new evidence. Applying the interests-of-justice framework set out in Products Unlimited, Inc v Five Seasons Comfort Limited, 2026 FC 48, the Court assessed relevance, materiality, credibility, the circumstances of the delay, and prejudice to the respondent. While the proposed evidence was relevant and material — it addressed use of the mark, the only issue before the Registrar — the Court found that the credibility and reliability of the evidence, combined with the applicant’s conduct, decisively weighed against granting leave.
The Court found LK’s assertion that she did not receive the Section 45 Notice “simply not credible.” The Purolator proof of delivery established the Notice was delivered to her address and she signed for it; the respondent’s January 2025 letter, also signed for by LK, explicitly referenced the Notice and the consequences of inaction. LK’s omission of the letter from her first affidavit — and her explanation that she did not understand or remember it — was rejected in light of evidence that she read it aloud to KK and filed it at the front of a dedicated binder. The Court also identified material inaccuracies in KK’s proposed affidavit regarding his role with EMI, which were inconsistent with his LinkedIn profile and bankruptcy-proceeding affidavits indicating he was bankrupt from 2013 to 2019 and thus ineligible to serve as an officer or director during that period. These inaccuracies undermined his ability to speak reliably to EMI’s activities.
The Court rejected the applicant’s argument that the low evidentiary threshold in Section 45 proceedings and the “remove deadwood” purpose of those proceedings should override the other leave factors. It confirmed — consistent with Ecovacs Robotics Co, Ltd v American Air Filter Company, Inc, 2026 FC 329, and Nielsen Consumer LLC v Toronto-Dominion Bank, 2026 FC 549 — that the same multi-factor interests-of-justice test applies in Section 45 appeals as in opposition appeals, and that a reasonable explanation for the delay in filing remains required. Finding that the applicant had not provided such an explanation and had effectively attempted to mislead the Court, the Court concluded it would not be in the interests of justice to grant leave. The Rule 75 motion to amend KK’s affidavit was also dismissed as moot.
Key Takeaways
- Leave to adduce new evidence under subsection 56(5) of the Trademarks Act requires a trademark owner to satisfy a multi-factor interests-of-justice test — relevance, materiality, credibility, explanation for delay, and prejudice to the opposing party — even in Section 45 “use it or lose it” proceedings; the low threshold for proving use does not displace the other leave criteria.
- Courts will scrutinize the circumstances surrounding a trademark owner’s failure to respond to a Section 45 Notice; an applicant who cannot credibly explain why it missed the deadline — particularly where delivery records contradict its sworn evidence — faces a high risk that leave will be denied.
- Shifting or contradicted evidence from a party’s own witnesses on a critical fact (here, receipt of the Notice) can independently defeat a leave motion: courts will decline to exercise discretion in favour of a party that has attempted to mislead the court, consistent with the unclean hands doctrine.
- Inaccuracies in the proposed new evidence itself — such as misrepresentations about a deponent’s corporate role or authority — further undermine the reliability of that evidence and weigh against granting leave, even where the evidence is otherwise material.
Why It Matters
This decision reinforces that a registered trademark owner who ignores a Section 45 Notice cannot repair the damage on appeal simply by tendering evidence of use that was available all along. The Federal Court’s application of the Products Unlimited framework to a contested Section 45 leave motion — where the applicant’s delay explanation was actively challenged and prejudice was asserted — signals that appellants in these proceedings must come to court with both credible evidence and a credible account of why that evidence was not placed before the Registrar in the first instance.
The ruling also serves as a practical warning about the evidentiary risks of Section 45 proceedings: courier delivery records, third-party correspondence, and even a deponent’s LinkedIn profile and bankruptcy filings may all be deployed to undermine sworn assertions about receipt of notices or corporate authority. Trademark owners — and their counsel — should treat Section 45 Notices with immediate urgency and ensure that anyone swearing evidence of use is prepared to withstand detailed cross-examination on both their role and the substance of the evidence they are providing.