The dog ate your evidence? Application of the test for new evidence in opposition and expungement proceedings, post-Products Unlimited

Earlier this year, the Federal Court in Products Unlimited set out four factors to consider in assessing whether to grant leave to adduce additional evidence when appealing decisions of the Registrar of Trademarks to the Federal Court.^[1]

In Products Unlimited, the court, also indicated that for matters that were before the registrar prior to the changes to the Trademarks Act that took effect in April 2025, the court should consider the procedural differences before and after the changes to the Trademarks Act, in assessing whether to grant leave.

In subsequent decisions, the Federal Court has continued to apply the four factors from Products Unlimited in assessing whether to grant leave to file additional evidence under section 56(5) of the Trademark Act. However, these decisions provide further insight in how the Federal Court intends to apply those factors, going forward.

Appeal of opposition proceeding

In Constellation Brands, 2026 FC 866, Constellation’s opposition of two trademark applications was rejected by the Trademarks Opposition Board (the “Board”), with the Board finding that Constellation had not met its evidentiary burden to establish the facts underlying its grounds of opposition.^[2] In its appeal to the Federal Court, Constellation sought leave to adduce additional evidence which it argued addressed the deficiencies identified by the Board.

With respect to the reason for the delay in filing the new evidence, the third factor from Products Unlimited, Constellation primarily relied on the pre-April 2025 procedural framework, whereby additional evidence could be adduced on appeal without leave.

The court found that Constellation’s failure to explain the delay weighed against granting leave, but stopped short of concluding that the failure to explain was dispositive of the leave issue, as the respondent argued.^[3] In doing so, the court noted that Constellation’s evidence was filed before Products Unlimited, and recognised the transitional flexibility suggested by Products Unlimited where evidence before the Board was filed prior to April 2025. Nonetheless, the court’s finding that the lack of explanation for the delay in filing the new evidence weighed against granting leave, suggests that parties should consider providing further explanation for why the evidence was not adduced earlier, even in circumstances where the evidence before the Board was filed prior to April 2025.

The court ultimately denied Constellation leave to adduce additional evidence. For some portions of the proposed new evidence, leave was denied as the court found the evidence to be inadmissible opinion evidence.^[4] For other portions of the proposed new evidence, the court found the evidence was not sufficiently material to fill the evidentiary deficiencies identified by the Board.^[5]

It should be noted that the leave issue was decided in a standalone motion, as opposed to a motion heard together with the hearing on the merits. The court therefore would not necessarily have had Constellation’s full arguments on the merits in order to assess the materiality of Constellation’s additional evidence.

Appeal of Section 45 Expungement

In Trademark Building Products Inc., 2026 FC 251, the Registrar had partially expunged three trademark registrations. The applicant Window World sought leave to adduce additional evidence which it contended would address the gaps and deficiencies identified by the Registrar in its decision.^[6]

Applying the Products Unlimited factors, the court granted leave with respect to a portion of the additional evidence. For that evidence, the court accepted the explanation why it was not accessible at the time of the proceeding before the Registrar.^[7] The evidence was also found to be sufficiently material given the comments in the Registrar’s decision.^[8]

The court, however, denied leave with respect to other portions of the additional evidence. The Court found that the additional evidence was not material as it did not address the deficiencies in evidence identified by the Registrar.

Appeals of Section 45 Expungement Proceedings where no evidence before the registrar

In Ecovacs Robotics Co., 2026 FC 329 and Nielsen Consumer, 2026 FC 549, both cases concerned appeals with respect to section 45 expungement proceedings where the appellant had failed to submit any evidence before the Registrar, leading to the trademark registrations being expunged. In one case, the appellant had not received the section 45 Notice.^[9] In the other, the appellant had received the section 45 Notice but had not acted on it because of an employee error.^[10]

In both cases, the requests for leave to submit additional evidence were heard together with the hearing on the merits, and the requests were not opposed by the respective respondents.^[11] The court concluded the Products Unlimited factors were met, without much difficulty. On materiality, the court in each case found the new evidence was material because there was previously no evidence at all before the Registrar.^[12]

In Enteractive Media, 2026 FC 843, another case where the appellant had failed to submit any evidence before the Registrar in section 45 expungement proceedings, the request for leave to adduce additional evidence was considered as a standalone motion. In that case, no evidence had been submitted before the Registrar because the appellant had not received or had misplaced the notice.^[13]

Applying the Products Unlimited factors, the court found that the additional evidence was relevant and material.^[14] However, there were concerns about the reliability and credibility of the evidence.^[15] Additionally, the court found that the appellant’s claim that it had not received the Notice was not credible.^[16] The court ultimately found that it would not be in the interest of justice to grant leave, and denied the request.

Takeaways

In seeking leave to adduce additional evidence, all four of the Products Unlimited favours should be addressed, with particular attention to the reason(s) why the new evidence was not adduced earlier and the relevance and materiality of the new evidence.

Although the court has repeated that it will be flexible with respect to cases where the decision under appeal was subject to the pre-April 2025 procedure, parties should not rely solely on the explanation that additional evidence could previously be adduced as of right, and should still address why the evidence was not filed earlier.

Where there was no evidence before the Registrar, the additional evidence appears more likely to meet the materiality factor, assuming the evidence is reliable and credible, but the trademark owner’s explanation for why no evidence was filed before the Registrar remains a critical consideration.

Parties contemplating such motions should also carefully consider whether to bring their motion in advance of the hearing on the merits - where an early resolution of the new evidence motion is desirable - or whether to ask that their motion be heard at the same time as the hearing on the merits.

Any questions? Please contact the authors or a member of our IP team.