Federal Court Reinstates Trademark Registration After Administrative Error Leads to Expungement

Recently, in its decision dated September 6, 2026, the Federal Court in Lion Corporation v. MBM Intellectual Property Agency, 2026 FC 1127, provided further guidance on when a trademark owner may be granted leave to file additional evidence on an appeal from a decision of the Registrar of Trademarks under the recently amended subsection 56(5) of the Trademarks Act.

The underlying proceeding involved a section 45 summary cancellation proceeding against Lion Corporation’s registration for the LION Logo trademark. The Registrar issued a section 45 notice requiring Lion Corporation to provide evidence showing use of the trademark in Canada during the relevant three-year period. Lion Corporation did not file any evidence, and the Registrar ordered the registration expunged.

Lion Corporation appealed the decision to the Federal Court and sought leave to file new evidence of use. It explained that it had not responded to the section 45 notice because its Japanese trademark agent had mistakenly classified the notice in its email management system as relating to a renewal rather than a non-use cancellation proceeding. As a result, the notice was routed to the wrong personnel and Lion Corporation was never informed of the proceeding or the deadline to file evidence. The same error occurred when the agent subsequently received the Registrar’s letter advising that the registration would be expunged for failure to file evidence. Lion Corporation only learned of the section 45 proceeding and resulting expungement after its agent received the Registrar’s letter advising of the expungement.

In deciding whether to admit Lion Corporation’s new evidence, the Court applied the framework recently set out in Products Unlimited, Inc. v. Five Seasons Comfort Limited, 2026 FC 48. Under that framework, the Court considers whether granting leave is in the interests of justice, having regard to factors including the relevance, credibility and admissibility of the evidence, its materiality, the circumstances surrounding the delay in filing it, and any prejudice to the opposing party.

The Court found that the new evidence was both relevant and material. It directly addressed the sole issue that had been before the Registrar, namely whether the LION Logo had been used in Canada during the relevant period. Because no evidence of use was before the Registrar, the Court found that the new evidence could have materially affected the Registrar’s decision.

With respect to the delay, the Court emphasized that the circumstances surrounding a failure to file evidence are fact-specific and must be approached flexibly. Although the Court expressed some doubt regarding the diligence exercised by Lion Corporation’s Japanese trademark agent, it found that Lion Corporation itself was unaware of the section 45 proceeding through no fault of its own and therefore could not have responded to the notice in time. The Court also noted the uncontested evidence that, had Lion Corporation known about the proceeding, it would have filed evidence of use by the deadline.

The Court further observed that where the other factors favor leave and the respondent does not oppose the application or participate in the proceeding, less weight may be given to the circumstances surrounding the delay. The respondent in this case took no position and did not participate in the hearing, and the Court found that admitting the evidence would cause it no prejudice. Considering all of the factors together, the Court concluded that the interests of justice favored granting Lion Corporation leave to file its new evidence.

Because the new evidence was material, the Court considered the affected issues on a de novo basis, effectively stepping into the shoes of the Registrar. Lion Corporation’s evidence showed sales of goods bearing the LION Logo to Canadian distributors during the relevant period, supported by photographs of product packaging, invoices and packing lists. The evidence also established that products were shipped by Lion Corporation’s Korean subsidiary under a licence pursuant to which Lion Corporation controlled the character and quality of the goods. The Court therefore found that the Korea subsidiary’s use of the trademark in Canada during the relevant period enured to the benefit of Lion Corporation pursuant to subsection 50(1) of the Trademarks Act.

The Court ultimately found that Lion Corporation had established use of the LION Logo during the relevant period for a reduced list of goods. The Registrar’s decision was set aside and the registration was reinstated for those goods.

The decision provides further guidance on the Court’s approach to the new leave requirement under subsection 56(5) of the Trademarks Act. In particular, it confirms that the circumstances surrounding a failure to file evidence before the Registrar are assessed flexibly and in the context of the interests of justice as a whole. An administrative error by a trademark owner’s agent will not necessarily prevent the owner from introducing that evidence on appeal, particularly where the owner itself was unaware of the proceeding, the evidence is material, and its admission causes no prejudice to the opposing party.