What is the test for using a trade-mark to promote a product?
Canada (Federal), Canada
The following excerpt is from CMRG Apparel LLC v. Grafton-Fraser Inc., 2011 TMOB 12 (CanLII):
The registrant submitted that the advertising material should be considered since it supports the other evidence of sales of men’s clothing; however, the only evidence of sales is of T-shirts and possibly sport shirts. There is no evidence of sales of any other wares, nor even any clear statement by the affiant to which such advertising material could lend its support. Thus, in my view the principle that use of a trade-mark in relation to wares cannot be shown by mere advertising or distribution of promotional materials applies [Gowling & Henderson v. John Morton Ltd (1992) 47 C.P.R. (3d) 268 at 270].
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