Executive Summary: Key Legal and Evidentiary Issues

• Nielsen Consumer LLC's TDLINX trademark was expunged after an employee inadvertently failed to docket and respond to a section 45 Notice requiring proof of use.

• The Federal Court applied the Products Unlimited test to determine whether leave should be granted to adduce new evidence on appeal, weighing relevance, materiality, delay circumstances, and prejudice.

• ACNielsen's use of the TDLINX Mark in Canada was argued to inure to the benefit of the registered owner, Nielsen Consumer, under a licensing arrangement satisfying subsection 50(1) of the Trademarks Act.

• Evidence of use included client contracts, invoices, promotional materials, website printouts, and representative database screenshots bearing the TDLINX Mark during the relevant period.

• The Respondent, Toronto-Dominion Bank, did not file a Notice of Appearance or participate in the appeal, resulting in no opposition and no finding of prejudice.

• Registration was reinstated with an amended goods and services list, excluding references to "product listings" and "product" information, which the Appellant conceded should be deleted.

The facts of the case

Nielsen Consumer LLC is a consumer intelligence company and the owner of Canadian Trademark Registration No. TMA704839 for the word mark TDLINX, registered on January 16, 2008. The mark was registered for use in association with downloadable electronic databases in the fields of retail marketing and retail sales information, as well as market research services involving the reviewing, coding, and conforming of retail data and records. Nielsen Consumer conducts its Canadian business through its licensee, ACNielsen Company of Canada, both entities being part of the NielsenIQ group of companies.

The section 45 Notice and the failure to respond

On May 16, 2025, at the request of the Toronto-Dominion Bank, the Registrar of Trademarks issued a section 45 Notice under the Trademarks Act, requiring Nielsen Consumer to demonstrate use of the TDLINX Mark during the three-year period from May 16, 2022 to May 16, 2025. Jennifer Lazala, an employee in Nielsen Consumer's IP Legal department responsible for maintaining the company's trademark portfolio, inadvertently overlooked the email regarding the Notice. She did not docket the deadline to respond, nor did she bring the Notice to anyone's attention. As a result, no evidence of use was filed before the deadline.

The Registrar's decision and the appeal

On September 29, 2025, the Registrar issued a decision expunging the TDLINX Mark for failure to file any evidence of use. Nielsen Consumer only became fully aware of the Notice and the Decision on October 8, 2025, when Ms. Lazala received an email from her instructing US trademark attorney reporting that the Mark would be expunged for failure to file evidence of use. The company brought an appeal on November 28, 2025, seeking leave under subsection 56(5) of the Trademarks Act to adduce new evidence demonstrating use of the mark during the relevant period.

The test for leave to adduce new evidence

The Court applied the test recently articulated in Products Unlimited, Inc v Five Seasons Comfort Limited, 2026 FC 48, which examines four factors: (a) the relevance, credibility, and admissibility of the evidence; (b) the materiality of the evidence; (c) the circumstances surrounding the delay in filing the evidence; and (d) whether granting leave would cause prejudice to the opposing party. Justice Furlanetto found all four factors satisfied. The evidence was relevant as it related to use of the TDLINX Mark, which was the only issue before the Registrar. It was also credible and uncontradicted, as there was no cross-examination on the affidavit and no participation by the Respondent. The evidence was material because the Registrar did not have any evidence of use before it. The Respondent took no position on the appeal, resulting in no prejudice. While the delay was caused by the Appellant's own inadvertence, the Court found this factor took on less weight given that all other factors were met and the Respondent had not contested leave nor taken a position in the proceeding.

Evidence of use in association with registered goods

The new evidence centered on the affidavit of Francis Parisien, sworn February 13, 2026. Mr. Parisien is the Senior Vice President Sales, Small & Medium Businesses Canada of ACNielsen Company of Canada. He explained that the information the Appellant provides to its clients in Canada is organized into databases in the form of flat-file spreadsheets. The spreadsheets are downloadable and delivered to clients online through email or through an online web-portal. The databases include retail marketing and retail sales information such as retail store locations, annual sales volumes, All Commodity Volume (which is a store's overall sales), the type of trade in which a store operates, and whether a store is part of a chain or if they are independent. The TDLINX Mark was prominently displayed on the first sheet of the flat-file spreadsheet alongside the words "Store List – Canada," which the Court found to be merely descriptive of the information on the spreadsheet and not detracting from the distinctiveness of the TDLINX Mark. Mr. Parisien also provided a screenshot of a representative downloadable database that included a column for the "TDLinx Code." Representative contracts and invoices confirmed that, during the relevant period, Nielsen Consumer, through ACNielsen, provided more than eight clients in Canada with downloadable electronic databases containing retail business locations, sales information, and marketing information in the normal course of trade.

Evidence of use in association with registered services

The Appellant also demonstrated use of the TDLINX Mark in association with its registered services through promotional materials and website content. The Parisien Affidavit attached various promotional materials, including a sales sheet and presentations, which Mr. Parisien stated were distributed to potential clients in Canada during the relevant period. The sales sheet was undated but included a copyright notice from 2024, while the presentations were dated April 2023 and March 2023. The sales sheet displayed the TDLINX Mark prominently at the top and described some of the services offered in association with the mark. The presentations similarly displayed the TDLINX Mark throughout and promoted reviewing, coding, and conforming services. Mr. Parisien also provided printouts from the Nielsen Consumer website as they appeared during the relevant period, which prominently displayed the TDLINX Mark. Mr. Parisien stated that he believes the promotional materials were widely distributed to at least 200 manufacturers in Canada during the relevant period by email. He also provided website analytics indicating that 200 Canadians visited the collective webpages attached to his affidavit during the relevant period. The Court was satisfied that the Appellant had advertised the registered services and was willing and able to perform them, as demonstrated by the representative contracts and invoices showing that databases of the type advertised were sold by ACNielsen to clients in Canada during the relevant period.

The licensing arrangement

The Court accepted Mr. Parisien's express statement that ACNielsen provides goods and services in association with the trademark TDLINX in Canada under license from Nielsen Consumer, and that Nielsen Consumer has had, at all material times, direct or indirect control over the character and quality of the goods and services ACNielsen provides in association with the TDLINX Mark in Canada. The Court found this statement sufficient to satisfy subsection 50(1) of the Trademarks Act and to establish that use by ACNielsen inures to the benefit of Nielsen Consumer, the registered owner of the TDLINX Mark.

The ruling and outcome

Justice Furlanetto of the Federal Court allowed the appeal and set aside the Registrar's decision dated September 29, 2025. Trademark Registration No. TMA704839 for the TDLINX Mark was reinstated with an amended list of goods and services. The Appellant conceded that "product listings" should be deleted from the list of registered goods and that services relating to "product" information and "product listings" should be deleted from the list of registered services. The registration was therefore maintained only in relation to the remaining goods and services. The Respondent, Toronto-Dominion Bank, did not participate in the proceedings at any stage. Nielsen Consumer LLC was the successful party in this appeal, securing reinstatement of its trademark registration. No exact monetary amount was awarded or ordered; costs were not requested, and the Court made no order as to costs.