Pillow Fights!
Sissel-Online Ltd. v. Sissel Handels GMBH, 2009 FC 827 (Hansen J.)

August 12, 2009

Paul R. Smith for the Applicant, Sissel-Online Ltd.
Hafeez Rupani for the Respondent, Sissel Handels GMBH

This was an appeal from two decisions of the Trade-marks Opposition Board (“Board”) made pursuant to Section 45 of the Trade-marks Act maintaining the Respondent’s registrations for the trade-marks SISSEL in association with “pillows”. The Board had concluded, pursuant to Subsection 4(1) of the Trade-marks Act, that the Respondent demonstrated use of the trade-marks in Canada within the three years preceding the date of the notice.

The Applicant alleged misapprehension of the evidence of the sales by the Board on the basis of the absence of invoices evidencing an actual sale or delivery of pillows in Canada, although the Respondent’s affidavit shows sales figures for Canada. According to the Applicant, evidence tendered is corroborative of sales, as opposed to evidence of sales.

Reminding that in proceedings under Section 45 of the Trade-marks Act it is not enough to simply assert use, the Court rejected however the notion that there is some particular kind of evidence which must be provided when it comes to the type of evidence required to show use. Applying this principle to the facts, the Court concluded, on a standard of reasonableness, that the Board did not misapprehend the evidence.

Appeal dismissed, with costs to the Respondent.

By: Marvin Harik, Avocat/Counsel, SCHL | CMHC