A recent decision of the Trade-mark Opposition Board ("the
Opposition Board") has confirmed the admissibility of evidence
obtained by using the Wayback Machine.
The Facts
In this case the applicant applied for a trade-mark based on use
in Canada since at least February of 2002. The application was
opposed on the grounds that, among others, the application did not
comply with the requirements of the Trade-marks Act
("the Act") because the applicant had not used the
trade-mark in Canada in association with the applied for wares and
services since the date of first use.
The Onus
The hearing officer observed that the applicant bears the legal
onus of establishing, on a balance of probabilities, that its
application complies with the requirements of the Act. There
is, however, an initial burden on the opponent to present
admissible evidence from which it could reasonably be concluded
that the facts alleged to support each ground of opposition
exist.
