Cosmetic Warriors Limited v. Riches, McKenzie & Herbert LLP, 2019 FCA 48

Justice Webb; Justice Rennie; Justice Laskin - 2019-03-11

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Cosmetic Warriors Limited appeals from a judgment of the Federal Court (Manson J., 2018 FC 63), allowing an appeal from a decision of the Registrar of Trade-marks (2017 TMOB 36). The hearing officer maintained the registration of a trade-mark in a proceeding challenging the registration for non-use under section 45 of the Trade-marks Act. He found that the trade-mark had been used in the “normal course of trade” within the meaning of subsection 4(1) of the Act, and that given that finding, there was no need to consider whether use was established in relation to exported goods under subsection 4(3). In issue is the trade-mark “LUSH,” as registered (No. TMA649810) for use in association with “[c]lothing, namely, t-shirts.” ... T-shirts and tank tops bearing the LUSH trade-mark are sold by Lush Canada in limited quantities to LUSH store employees in both Canada and the United States to wear as part of their uniform, and sometimes to give as gifts to family and friends. Cosmetic Warriors asks that the Federal Court’s judgment be set aside and that the LUSH trade-mark be maintained on the register in accordance with the hearing officer’s decision. It argues that the Federal Court judge applied the wrong tests for trade-mark use within the meaning of subsections 4(1) and (3), and that he was insufficiently deferential to the hearing officer’s findings. For the reasons set out below, I would allow the appeal.

Decision relates to:


Canadian Intellectual Property