Citation: 2020 TMOB 36

Date of Decision: 2020-04-17

IN THE MATTER OF A SECTION 45 PROCEEDING

	1894245 Alberta Inc.	Requesting Party
and
	Walker Wellness Block Inc.	Registered Owner
	TMA796,827 for YEE HAW ADVENTURE FARM	Registration

[1]  At the request of 1894245 Alberta Inc. (the Requesting Party), the Registrar of Trademarks issued a notice under section 45 of the Trademarks Act, RSC 1985, c T-13 (the Act) on February 14, 2018 to Yee Haw Adventure Farm Inc., the registered owner at that time of registration No. TMA796,827 for the trademark YEE HAW ADVENTURE FARM (the Mark). 

[2]  The Mark is registered for use in association with the following services:

Operating a children’s adventure farm; providing teaching and educational games and tours in the fields of agriculture, farming and ecology; operating corn mazes, country games, hayrides, pig races, goat walks, slides; operating day camps, conducting corporate team building events, hosting dances, birthday parties and Halloween celebrations; engaging in food and beverage sales.

[3]  Section 45 of the Act requires the registered owner of the trademark to show whether the trademark has been used in Canada in association with each of the services specified in the registration at any time within the three-year period immediately preceding the date of the notice and, if not, the date when it was last in use and the reason for the absence of such use since that date. In this case, the relevant period for showing use is February 14, 2015 to February 14, 2018.

[4]  The relevant definition of use for services is set out in section 4(2) of the Act as follows:

4(2) A trademark is deemed to be used in association with services if it is used or displayed in the performance or advertising of those services.

[5]  It is well established that mere assertions of use are not sufficient to demonstrate use in the context of section 45 proceedings [Plough (Canada) Ltd v Aerosol Fillers Inc (1980), 53 CPR (2d) 62 (FCA)]. Although the threshold for establishing use in these proceedings is low [Woods Canada Ltd v Lang Michener (1996), 71 CPR (3d) 477 (FCTD)], and evidentiary overkill is not required [Union Electric Supply Co Ltd v Registrar of Trade Marks (1982), 63 CPR (2d) 56 (FCTD)], sufficient facts must still be provided to permit the Registrar to arrive at a conclusion of use of the trademark in association with each of the services specified in the registration during the relevant period [John Labatt Ltd v Rainier Brewing Co (1984), 80 CPR (2d) 228 (FCA)]. 

[6]  With respect to services, the display of a trademark on advertising is sufficient to meet the requirements of use when the trademark owner is offering and prepared to perform those services in Canada [Wenward (Canada) Ltd v Dynaturf Co (1976), 28 CPR (2d) 20 (TMOB)].

[7]  Subsequent to the issuance of the notice, the Registrar recorded a change in title of the registration from Yee Haw Adventure Farm Inc. to Walker Wellness Block Inc. (the Owner).  This change of title is not at issue in this proceeding.

[8]  In response to the Registrar’s notice, the Owner furnished the affidavit of Todd Walker, director of the Owner, sworn on September 11, 2018. Only the Requesting Party submitted written representations. No hearing was requested.

The Owner’s Evidence

[9]  In his affidavit, Mr. Walker asserts that, during the relevant period, the Owner used the Mark in association with the registered services by operating an adventure farm located in Cambridge, Ontario.

[10]  Mr. Walker asserts that the Owner provided the registered services in association with the Mark to members of the public, local school tours and multiple corporate family events for employees and their families. He explains that one of the corporate events, described as a “Fall Adventure”, includes “all of the Registered Services such as: a farm animal walk, children’s games and activities, a wagon ride, a boo barn (a haunted barn), pig races, educational farm tours, dancing, a corn maze, food, beverages and pumpkins” [para 8].

[11]  Mr. Walker further states that the Owner’s website advertised education and entertainment services such as school tours and company events, and features hay rides, pig races, pumpkin patches, selling homemade food products, a “scary” barn tour and barn animals. In particular, Mr. Walker indicates that the Owner promoted a “Company friends and family day” on its website, described as a “Staff Appreciation Event” which included the aforementioned services [para 9]. Mr. Walker also states that posts on the Owner’s Facebook page include photographs of corporate events held on the farm as well as photographs which “promote aspects of the farm such as its animals” [para 10].

[12]  Mr. Walker further notes that the farm received reviews on Trip Advisor during the relevant period. In particular, he emphasizes a review from May 2016 which “references a customer’s visit to the farm for a Halloween haunted barn trip” [para 11].

[13]  Mr. Walker indicates that the estimated total revenue for services performed in association with the Mark between 2015 and 2017 was approximately $44,000. Mr. Walker explains that this total revenue includes admission sales and sales of pumpkins [para 12].

[14]  Finally, Mr. Walker notes that the Owner’s Cambridge, Ontario location has been sold. Despite the sale of the property, Mr. Walker confirms that the Mark will continue to be used in association with the registered services at a new property located in Hamilton, Ontario [para 15].

[15]  In support of the foregoing, Mr. Walker attaches the following exhibits to his affidavit:

·  Exhibit A consists of fourteen photographs. Two photos show directional signs for “YEE HAW ADVENTURE FARM”, which Mr. Walker explains are located on highways leading to the farm. Four photos show the interior and exterior of the barn. Two photos show an aerial view of the farm, one of which shows that the farm includes a cornfield maze. The remaining six photos show three corporate events, two wedding events and an additional event annotated as “Special Event” in the exhibit.

·  Exhibit B consists of photocopies of two deposit slips and two invoices. The first deposit slip is identified as a “Corporate Real Estate Event” for Raquel Blackwell’s RE/MAX group, and the second deposit slip is for “hay sales/rental of farm acres”. I note that the Mark does not appear on these deposit slips.  However, the Mark is displayed on the two invoices.  Both invoices are dated October 2015 and includes the Owner’s Cambridge, Ontario address. The first invoice lists the following: “Farm animal walk, Wagon ride, Boo Barn, Pig race, pie, coffee, pumpkins”. The second invoice displays a similar list, with the exception of “pie” and “coffee”.

·  Exhibit C consists of four webpage printouts from the Owner’s website, dated April 7, 2015, July 6, 2015, January 13, 2016, and March 14, 2016, respectively, which Mr. Walker confirms were obtained from the WayBackMachine at archive.org. In addition to the Mark appearing on each webpage, I note the following:  

o  The April 7, 2015 webpage contains a post regarding the “Ontario School Curriculum based Farm Tour Program A.K.A. End of Year School Trip”, referencing the following: an overview of the pumpkin/corn field as it relates to planting season; animals on the farm; a “Crazy Mazy” hide-and-seek matching game; snack time; wagon rides; a slide and playground; a pig race; and information regarding structures, equipment and layout of the farm. The page includes customer reviews of the farm.

o  The July 6, 2015 webpage includes a “Gone Fishing” post, explaining that the farm would be closed until spring 2015, after which the “Spring Fling Thang School Tours” would begin.

o  The remaining two webpages include identical posts regarding a “staff appreciation event” which Mr. Walker further identifies as a “company friends and family day” offered from September 18, 2015 to October 18, 2015. The posts include descriptions of the offerings to event attendees, namely: hayrides, live show and pig races, fall treats at “the Sugar Shak”, a “Barn Gone Bad silly barn”, farm animals, music and pumpkins.

·  Exhibit D consists of webpage printouts from the Owner’s Facebook page; the Mark is displayed as the Owner’s profile picture.  The printouts show various posts by the Owner dated from July 2014 to November 2015, including the following:

o  an August 2015 post advertising future corporate and client appreciation events at the farm, specifically inviting companies to book events;

o  October 2015 posts welcoming and thanking various companies for participating in events at the farm; and

o  an October 2015 post showing pictures of pigs on the farm.

·  Exhibit E consists of webpage printouts of three reviews from the Owner’s TripAdvisor page. Two of the reviews were posted during the relevant period, namely in May 2016 and August 2017. In particular, the May 2016 review references a customer’s visit to the farm, titled “Halloween fun” and reads as follows: “Great farm to visit with kids, haunted barn was fun and scary enough for adults, maybe not with smaller children. Fun, half day trip.”   

Analysis

[16]  In its written representations, the Requesting Party questions whether the Owner has established use of the Mark in association with all of the registered services.

[17]  However, first, with respect to the registered services “operating a children’s adventure farm”, “hayrides”, “pig races”, “goat walks” and “engaging in food and beverage sales”, the Requesting Party concedes that the Exhibit B invoices provide evidence of use in respect of these services. Indeed, the invoice clearly depicts the Mark, advertises events taking place at the farm and describes the “Adventure included” which lists these services. As conceded by the Requesting Party, I accept the following:

·  The references to “Farm animal walks” and “Boo Barn” in the invoices correlate to the registered service “operating a children’s adventure farm”;

·  “Wagon ride” correlates to the registered service “hayrides”; and

·  “Pie, coffee, pumpkins” correlate to the registered service “engaging in food and beverage sales”.

[18]  With respect to the invoiced “pig races” activity, the Requesting Party correlates this to the registered service “goat walks”. In my view, however, the reference to “Farm animal walks” provides a clearer correlation with such registered service.

[19]   In view of the foregoing, I am satisfied that the Owner has demonstrated use of the Mark in association with the following registered services within the meaning of sections 4 and 45 of the Act: “operating a children’s adventure farm”, “hayrides”, “pig races”, “goat walks” and “engaging in food and beverage sales”.

[20]  I will now consider the remaining services, with respect to which the Requesting Party has not conceded use.

Providing teaching and educational games and tours

[21]  With respect to the registered services “providing teaching and educational games and tours in the fields of agriculture, farming and ecology”, the Requesting Party submits that there is no evidence of use of the Mark in association with these services. However, as noted above, the Owner’s website (shown in Exhibit C) depicts the Mark and displays an advertisement for an “Ontario School Curriculum based Farm Tour Program (A.K.A. End of Year School Trip!)” with a list of activities that would occur at this event.

[22]  As such, with respect to “providing teaching and educational games…in the fields of agriculture, farming and ecology”, I note that the advertisement highlights a “hide and seek matching game” involving lessons about animals and the surrounding seasonal ecology of pumpkins and corn. With respect to “providing teaching and educational…tours”, the advertisement offers a “Wagon Ride to the endangered Beverly Swamp” meant to “cover the 5 senses”. As services are to be interpreted broadly, I accept that the advertised wagon ride constitutes a “teaching and educational tour” in the specified fields.

[23]  With respect to whether these services were offered during the relevant period, I note that the abovementioned webpages displaying the advertisement (shown in Exhibit C) are dated during the relevant period.

[24]  In view of the foregoing, I am satisfied that the Owner was, at a minimum, offering and prepared to perform the registered services “providing teaching and educational games and tours in the fields of agriculture, farming and ecology” in Canada during the relevant period in association with the Mark.  As such, I am satisfied that the Owner has demonstrated use of the Mark in association with such services within the meaning of sections 4 and 45 of the Act.

Corn mazes, country games and slides

[25]  With respect to the registered services “operating corn mazes, country games [and] slides”, again the Requesting Party submits that there is no evidence of use of the Mark during the relevant period in association with these services.

[26]  However, with respect to “corn mazes”, the website advertisement for the farm’s “Spring Fling Thang” (Exhibit C), references a “Crazy Mazy” and indicates that children will learn about seasonal plants and farming through “an overview of the farm – pumpkin fields/corn field and the spring planting season” (emphasis added). Moreover, as mentioned above, a cornfield maze is visible in an aerial view photograph of the farm (Exhibit A).

[27]  With respect to “country games”, the aforementioned “Crazy Mazy” is described on the website as a “hide and seek matching game” in which children must find missing animals and recall what they have learned about them. I accept that this activity correlates to a “country game”.

[28]  With respect to “slides”, the Owner’s website advertises a “big slide and playground” as being available to children during their free time at the farm.

[29]  With respect to whether such activities were available during the relevant period, I note that the aforementioned “Spring Fling Thang” event references a 2014 date. However, the “Gone Fishing” post, which states that “We are closed until Spring 2015 when we will be firing things up again for our Spring Fling Thang School Tours”, indicates that the abovementioned services for this specific event were available during the relevant period as well.

[30]  In view of the foregoing, I am satisfied that, at a minimum, the Owner was offering and prepared to perform the registered services “operating corn mazes, country games [and] slides” in Canada during the relevant period in association with the Mark.  As such, I am satisfied that the Owner has demonstrated use of the Mark in association with such services within the meaning of sections 4 and 45 of the Act.

Operating day camps, conducting corporate team building events, hosting dances and birthday parties

[31]  With respect to the registered services “operating day camps, conducting corporate team building events, hosting dances, birthday parties …” the Requesting Party submits that the Owner’s Facebook page provides no evidence of use of the Mark in association with these services during the relevant period. It further states that any use “directly or impliedly” shown through this evidence is prior to the relevant period, in view of a July 2014 Facebook post regarding a sale of the farm, house and property.

[32]  However, Exhibit D also shows several other Facebook posts dated within the relevant period that include announcements of future events at the farm and pictures from previous events. With respect to the registered service “conducting corporate team building events”, an August 2015 Facebook post invites companies to book corporate events and client appreciation events. Additionally, similar “staff appreciation events” encompassing a variety of activities were also advertised on the Owner’s website during the relevant period (as shown in Exhibit C). At a minimum, I accept such “staff appreciation events” as correlating to the registered service “conducting corporate team building events.”

[33]  With respect to “operating day camps”, the aforementioned website advertisement for “Spring Fling Thang” – described as an “End of Year School Trip” – is followed by a review by a school teacher thanking the Farm for the event. I accept that, at a minimum, such a trip correlates to the registered service “operating day camps”.

[34]   With respect to hosting “dances” and “birthday parties”, as noted above, it is clear from the evidence that various types of events and activities were offered at the Owner’s farm during the relevant period. In particular, I note that the Exhibit A photographs depict bridal parties and wedding parties. When considering the evidence as a whole, given the nature of wedding events and Owner’s ability to host large-scale events for various occasions, I am satisfied that such capacity correlates to the registered services “hosting dances [and] birthday parties”.

[35]  In view of the foregoing, I am satisfied that, at a minimum, the Owner was offering and prepared to perform the registered services “operating day camps, conducting corporate team building events, hosting dances, birthday parties” in Canada during the relevant period in association with the Mark. As such, I am satisfied that the Owner has demonstrated use of the Mark in association with such services within the meaning of sections 4 and 45 of the Act.

Halloween celebrations

[36]  With respect to the registered service “hosting … Halloween celebrations”, the Requesting Party submits that neither the “Boo Barn” nor the “pumpkins” referred to in the Exhibit B invoices have anything to do with “Halloween celebrations” as the invoices “relate to services provided the 17 and 18 of October, 2015, being almost 2 weeks before Halloween”.

[37]  The Requesting Party also submits that the Exhibit C website evidence does not establish any use of the Mark in respect of Halloween celebrations within the relevant period. However, the Exhibit C webpage printouts, as well as the Exhibit B invoices, mention the sale of pumpkins and a “Boo Barn” (further described by Mr. Walker as a “haunted barn”), offered during the relevant period and, in particular, October 2015. The farm’s haunted barn is also referenced in the aforementioned May 2016 customer review on Trip Advisor titled “Halloween Fun” (Exhibit E). Mr. Walker also confirms that pumpkin sales contributed to the Owner’s annual revenue during the relevant period [para 12].

[38]   Again, as services are to be interpreted broadly, I am unable to accept the Requesting Party’s apparent premise that “Halloween celebrations” are limited to the two-week period prior to Halloween itself.  

[39]  Considering the nature of the services provided by the Owner as a whole (including a haunted barn and pumpkin sales) and the timing of the activities in October, I am satisfied that, at a minimum, the Owner was offering and prepared to perform the registered services “hosting … Halloween celebrations” in Canada during the relevant period in association with the Mark. As such, I am satisfied that the Owner has demonstrated use of the Mark in association with such registered services within the meaning of sections 4 and 45 of the Act.

Disposition

[40]  In view of all of the foregoing, I am satisfied that the Owner has demonstrated use of the Mark in association with each of the registered services within the meaning of sections 4 and 45 of the Act.

[41]  Accordingly, pursuant to the authority delegated to me under section 63(3) of the Act and in compliance with the provisions of section 45 of the Act, the registration will be maintained.

 

Andrew Bene

Member

Trademarks Opposition Board

Canadian Intellectual Property Office

TRADEMARKS OPPOSITION BOARD

CANADIAN INTELLECTUAL PROPERTY OFFICE

APPEARANCES AND AGENTS OF RECORD

___________________________________________________

HEARING DATE: No Hearing Held

AGENTS OF RECORD

Gowling WLG (Canada) LLP	For the Registered Owner
Norbert Altvater (Altvater Law Office)	For the Requesting Party