The Federal Court has restored the SWAGGER trademark registration for a narrower group of clothing and bags after finding that new evidence established use for some, but not all, of its registered goods.
In Anashara v. BIZU Innovation Group, 2026 FC 1132, Justice Angela Furlanetto allowed the appeal in part and set aside the Registrar of Trademarks’ decision to expunge the registration. The September 4 judgment illustrates how photographs, advertising and invoices can support one another, while leaving gaps for products that the sales evidence does not cover.
Registration expunged after no evidence was filed
Faisal Anashara’s registration covered t-shirts and pullovers, along with a broader list of men’s, women’s and children’s clothing, footwear and sports bags. At BIZU Innovation Group’s request, the Registrar issued a section 45 notice on February 16, 2024, requiring evidence of use in Canada during the preceding three years.
Anashara filed no evidence. The Registrar expunged the registration on October 8, 2024. Anashara said he had not received the original notice and only learned of the proceeding when the expungement decision arrived. The reasons record that position without deciding that the notice had not been received. On appeal, he supplied an affidavit and exhibits, including product photographs, a 2023 advertisement and retail invoices. (Paragraphs 3–8.)
The appeal was decided on the written record. Anashara did not attend the hearing. BIZU attended but could not make oral submissions because it had not filed a record; the Court had previously advised Anashara that BIZU was not in default. (Paragraphs 9–10.)
New evidence justified a fresh assessment
Justice Furlanetto emphasized that the appeal remained focused on use of the trademark during the relevant period. Questions Anashara raised about BIZU’s activities did not expand the section 45 inquiry. (Paragraph 11.)
The applicable version of subsection 56(5) of the Trademarks Act gave Anashara a right to file new evidence. Because no evidence had been before the Registrar, his affidavit filled a gap and was sufficiently material to justify a fresh assessment. Materiality did not require proof that the new material would ultimately change the result; it was enough that it could have affected the Registrar’s factual findings or discretion. (Paragraphs 12–14.)
That procedural point has an important timing limit. The Court expressly applied the provision as it stood before amendments effective April 1, 2025. The current subsection 56(5) refers to the Federal Court granting leave to adduce additional evidence. This decision should therefore not be read as establishing an automatic right to file new evidence under the amended provision.
Retail sales supported only part of the goods list
The evidentiary burden in a section 45 proceeding is modest, but an owner must provide facts supporting an inference of trademark use for each registered good. For goods, subsection 4(1) links use to a transfer in the normal course of trade, with the required association between the mark and the goods. Mere assertions of use are insufficient. (Paragraphs 15–17.)
Anashara’s evidence included photographs of marked garments, an advertisement directing customers to the Promo Pig store in Hamilton, Ont., and invoices identifying SWAGGER products. Although the affidavit did not expressly explain the relationship between Anashara and Promo Pig, the Court could infer from the evidence that the store was a retailer of his branded goods during the relevant period. Sales through an intermediary can satisfy the use requirement. (Paragraphs 19–20.)
The photographs and advertisement did not themselves establish transfers. The photographs were undated, and advertising merchandise for sale did not demonstrate that it had been transferred in the normal course of trade. The invoices supplied evidence of transactions, but only for a limited range of items. (Paragraphs 21–22.)
Reading the evidence together, the Court connected photographed sweatshirts, jackets, t-shirts and tote bags with the items in the invoices. It could also infer that the garments could be men’s or women’s apparel. It found no children’s apparel reflected in the evidence, however, and insufficient evidence of transfers for every photographed product. (Paragraph 23.)
Registration restored with a narrower statement of goods
The judgment restores registration TMA723265 for t-shirts and pullovers; men’s and women’s apparel consisting of jackets, t-shirts and pullovers; and accessories consisting of sports bags. The order does not retain footwear, children’s apparel, jeans, scarves or hats. No costs were awarded. (Paragraph 24 and judgment.)
For trademark owners, the practical lesson is to connect evidence of the mark’s appearance with evidence of transactions during the relevant period, and to account for each category of registered goods. The narrower restoration reflects what this record proved. It does not establish that every excluded product had never been sold.
