In F.I.A.L. Finanziaria Industrie Alto Lario, S.P.A. v. Galperti SRL, 2024 FC 976, the Applicant successfully appealed a decision of the Trademarks Opposition Board granting an opposition against its GALPERTI trademark application.

In granting this appeal, the Federal Court affirmed the principle that it is not fatal for a date of first use claimed in a trademark application to be later than the actual date of first use of the trademark. As such, while the Applicant claimed a date of first use of 1999 in its application, it was able to rely on evidence of use of its GALPERTI mark from as early as 1986 to overcome the opposition based on a confusingly similar mark used as early as 1991.

Notably, the Applicant relied on affidavits of retired employees which did not include any corroborative documentary evidence. Despite the lack of documentary evidence, the Court found that the affidavits were sufficient as both affiants were “retired and the evidence does not show that they have any stake or conflict of interest to be anything other than truthful in their affirmations.”

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