[1]               This is a decision involving a summary expungement proceeding with respect to registration No. TMA741,005 for the trade-mark FABRIC (the Mark), owned by Fabric Life Limited.

[2]               The Mark is registered for use in association with the following wares and services:

[3]               On June 7, 2012, at the request of Fraser Milner Casgrain LLP (the requesting party), a notice was issued under section 45 of the Trade-marks Act RSC 1985, c T-13 (the Act) to Fabric Life Limited (the registered owner).  The notice required the registered owner to provide evidence showing that the Mark was in use in Canada, at any time between June 7, 2009 and June 7, 2012 (the relevant period), in association with each of the wares and services included in the registration. If the Mark had not been so used, the registered owner was required to furnish evidence providing the date when the Mark was last in use and the reasons for the absence of use since that date.

[4]               The relevant definitions of use are set out in sections 4(1) and 4(2) of the Act as follows:

[5]               It has been well established that the purpose and scope of section 45 of the Act is to provide a simple, summary, and expeditious procedure for clearing the register of “deadwood”. The criteria for establishing use is not demanding and an overabundance of evidence is not necessary; however, sufficient evidence must be provided to allow the Registrar to conclude that the trade-mark was used in association with each of the registered wares and services during the relevant period (see Uvex Toko Canada Ltd v Performance Apparel Corp (2004), 2004 FC 448 (CanLII), 31 CPR (4th) 270 (FC)). Furthermore, mere statements of use are insufficient to prove use, and ambiguities in evidence are to be interpreted against the interests of the registered owner [see Plough (Canada) Ltd v Aerosol Fillers Inc (1980), 1980 CanLII 2739 (FCA), 53 CPR (2d) 62 (FCA)].

[6]               In response to the Registrar’s notice, the registered owner provided the statutory declaration of Cameron Leslie, sworn on August 21, 2012. Only the requesting party filed written submissions. An oral hearing was not held.

[7]               Mr. Leslie’s statutory declaration is reproduced below:

[8]               The attachment marked “A” consists of copies of statements of account from Fontana North Distribution, which cover the period from October 2011 to April 2012.  The statements of account show transactions between Fontana North Distribution and Fabric Records LLP.

[9]               Having reviewed Mr. Leslie’s declaration, I note that he makes no mention of nor does he provide any evidence of use of the Mark with respect to the registered services.  Consequently, the services will be deleted from the registration.

[10]           With respect to the wares, there is no evidence that the Mark was displayed on the wares or their packaging. Furthermore, there is nothing in the evidence that permits me to infer that the statements of account followed the wares at their time of transfer [Riches, McKenzie & Herbert v Pepper King Ltd (2000) 2000 CanLII 16133 (FC), 8 CPR (4th) 471 (FCTD)].

[11]           In any event, even if it could be inferred that the documents furnished under Exhibit A accompanied the wares at their time of transfer, the Mark as registered does not appear on the statements of account.  Instead, what appears is “Fabric Records LLP”.   The use of a trade-mark in combination with additional words or features constitutes use of the registered mark if the public as a matter of first impression, would perceive the trade-mark per se as being used.  This is a question of fact which is dependent on whether the trade-mark stands out from the additional material, for example by the use of different lettering or sizing or whether the additional material would be perceived as clearly descriptive matter or as a separate trade-mark or trade name [Nightingale Interloc Ltd v Prodesign Ltd (1984), 2 CPR (3d) 535 (TMOB); 88766 Canada Inc v National Cheese Co (2002) 2002 CanLII 79637 (CA TMOB), 24 CPR (4th) 410 (TMOB)].  In the present case, the Mark does not stand out from the additional matter.  Furthermore, given that these documents include the description, “STATEMENT OF ACCOUNT WITH FABRIC RECORDS LLP”, the use of “Fabric Records LLP” would be perceived as a trade-name to identify the seller of the goods referred to in the statements of account [see Nightingale Interloc Ltd v Prodesign Ltd (1984), 2 CPR (3d) 535 (TMOB) and Road Runner Trailer Mfg Ltd v Road Runner Trailer Co Ltd et al (1984), 1 CPR (3d) 443 (FCTD)].

[12]           I wish to note that the appearance of “Fabric Records LLP” on the statements of account, in itself, raises a further ambiguity in the evidence.  In this regard, Mr. Leslie has not explained who this entity is, or what relationship this entity has to the registered owner.    This is a summary administrative proceeding and the evidence should not raise more questions than it answers [Axia NetMedia Corporation v NetManage Inc (2010), 2010 TMOB 164 (CanLII), 87 CPR (4th) 254 (TMOB) at para 27].

[13]           Lastly, there is also an ambiguity regarding the nature of the wares sold. The wares identified as sold on the statements of account appear to be some sort of musical recording, but their exact format is unclear. It is not the Registrar’s position to speculate as to the nature of the wares or the trade. It is the responsibility of the registered owner to show the connection between the wares registered and those included in the evidence [see Wrangler Apparel Corp v Pacific Rim Sportswear Co (2000), 2000 CanLII 50930 (CA TMOB), 10 CPR (4th) 568 (TMOB) at 571 and SC Johnson & Son, Inc v Registrar of Trade-marks (1981), 55 CPR (2d) 34 (FCTD)].

[14]           Having regard to the foregoing, the registered owner has failed to demonstrate use of the Mark in association with the wares during the relevant period as required by section 4(1) of the Act.  Moreover, Mr. Leslie’s statutory declaration did not address any special circumstances which would justify non-use of the Mark.

[15]           In view of all of the foregoing, pursuant to the authority delegated to me under section 63(3) of the Act, registration No. TMA741,005 will be expunged in compliance with the provisions of section 45 of the Act.