TMOB Upholds Electronically Notarized Affidavit And Awards Costs For Misleading Legal Submissions

In the recent decision of Chilly Moose Ltd. v. Moosehead Breweries Limited, the Trademarks Opposition Board (TMOB) accepted the admissibility of an electronically notarized affidavit and awarded costs for unreasonable conduct during the proceeding.

Chilly Moose (the Requesting Party) had sought to expunge for non-use a registration for the mark MOOSE owned by Moosehead Breweries (the Owner). In response, the Owner filed an affidavit that showed use of the mark in Canada during the relevant period.

The Requesting Party argued that the affidavit was defective because it had been electronically notarized, which was alleged to be in breach of mandatory Canadian legal requirements. The TMOB rejected this argument, noting that the Requesting Party failed to identify any specific legal requirement that had been breached. The TMOB also referred to its stated practice of accepting affidavits commissioned remotely as long as they comply with the requirements of the jurisdiction where they