Recent Decisions April 2005
I. FEDERAL COURT DECISIONS
(a) Patents
1. Apotex v. Synthex and Hoffman-LaRoche; Synthex and Hoffman-LaRoche v. Canada (Attorney General), January 27, 2005 FCTD (Aronovitch P.) Section 8/Damages /Patented Medicines (Notice of Compliance) Regulations/Third Party Claims/ Crown Liability Act/Negligence Act /Breach of Statutory Duty /Statutory Damages
Motion by Crown to strike out third party claims made by the defendants against Minister of Health for part of the damages for which they may be liable to Apotex pursuant to s. 8(2) of the Regulations. The defendants assert that if they are found liable to Apotex, then the Minister is in turn liable to them (for the period between the date on which defendants' patent was declared invalid and the date on which the Minister issued NOC) for breaching her duty in refusing “without lawful justification” to issue an NOC to Apotex immediately. The Crown argued that there is no cause of action against the Minister arising out of s. 8 of the Regulations since nothing in s. 8 creates a right of recovery against anyone other than a first person. The defendants also argued that the third party claims for indemnity and contribution are grounded in the Negligence Act thereby raising a reasonable cause of action against the Crown.
Held: Motion dismissed. Although the Court held that there was no cause of action arising out of s. 8 of the Regulations, the third party pleas may be sufficient to support an action for negligent breach of statute. The third party claims allege only the existence of a statutory duty which the Minister is said to have breached “without lawful jurisdiction”. Statutory negligence is an intentional or negligent failure to comply with a statutory duty. Civil consequences of a breach of statute are subsumed in the law of negligence. Notwithstanding that proof of the breach of the statute does not itself give rise to damages, proof of a statutory breach that causes damages can constitute evidence of common law negligence.
2. Merck v. Brantford Chemicals and Commissioner of Patents and Canada (Attorney General), February 2, 2005 FCA (Rothstein, Evans, Malone JJ.A.) Compulsory Licence/ Patent Act /Res Judicata/Functus Officio/Final Decisions
Appeal by Merck from von Finckenstein J.'s decision to dismiss Merck's appeal of the Commissioner's dismissal of its motion for a declaration that Brantford was barred from proceeding with its application for a compulsory licence pursuant to s. 65(2)(c) and (d) of the Patent Act on the grounds of issue estoppel (estoppel per rem judicatam) and functus officio. The Commissioner directed Brantford to serve the application on Merck after it filed a new application with the Commissioner. However, the Commissioner had previously refused Brantford's first application and dismissed its reconsideration application prior to acceptance of this new application. Merck argued that a Commissioner's decision to refuse to entertain an application is a final decision. Merck's functus officio argument relied on the characterization of the Commissioner's decision as final.
Held: Appeal dismissed. Merck has not demonstrated that the doctrines of res judicata or functus officio are applicable. von Finckenstein J. did not err when he concluded that the decision of the Commissioner under s. 68(2) was not a final decision. Unlike many administrative tribunal statutes, there are no express words in s. 68 suggesting that a decision under that section is a final one. The decision under s. 68 is made on an ex parte application. A patentee becomes a party to the proceedings to determine whether the applicant should receive a compulsory licence only after the Commissioner decides that a case for relief has been made. The only effect of the “screening” decision in favour of an applicant under s. 68(2) is to require the patentee, if it desires to do so, to oppose the application. It will only be after the Commissioner considers the opposition and the submissions of both the applicant and the patentee that a decision will be made that may result in an order for the granting of a compulsory licence. There is no mutuality of parties in respect of the Commissioner's decision under s. 68(2). The doctrine of functus officio only applies in the case of final decisions.
3. Rhoxalpharma v. Novartis Pharmaceuticals Canada et al., February 14, 2005 FCA (Desjardins, Nadon, Pelletier JJ.A.) Appeal from Prohibition Order /Claim Construction/Patented Medicines (Notice of Compliance) Regulations
Appeal by Rhoxalpharma from Lemieux J.'s decision allowing a prohibition order. Novartis owns a patent, which covers a pharmaceutical preparation of cyclosporine containing a hydrosol, i.e. a dispersion of small solid particles in a liquid. Rhoxalpharma sold a cyclosporine capsule which was not a hydrosol, but as Novartis argued, forms a hydrosol in the patient's body, once the capsule is ingested. At trial, the patent was construed to cover post-ingestion hydrosols.
Held: Appeal allowed. Claim construction is a question of law for the judge, who is even entitled to adopt a construction of the claims that differs from that put forward by the parties. Lemieux J. erred in letting Novartis' experts dictate the conclusion that the patent covered post-ingestion hydrosols. Lemieux J. should not have blindly accepted the conclusions of Novartis' experts, but should have interpreted the claims of the patent himself, and only then could he have come to his conclusion.
4. AB Hassle et al. v. Apotex, February 14, 2005 FCTD (Layden-Stevenson J.) Notice of Allegation /Sufficient Information /Issue Estoppel /Patented Medicines (Notice of Compliance) Regulations
Applicant requests a declaration that Apotex's letter of September 26, 2002 is not a NOA and, in the alternative, a prohibition order. AstraZeneca is the owner of a patent, in respect of which Apotex had sent NOAs in April 1993, December 1997 and August 2000. The August 2000 NOA alleged that no claim for the medicine itself and no claim for the use of the medicine would be infringed. In the current NOA, Apotex alleged both non-infringement and invalidity of the patent. AstraZeneca argued in this proceeding that Apotex's NOA is not sufficient as the arguments Apotex raised during the proceeding were not contained in the NOA. In addition, AstraZeneca also raised issue estoppel, arguing that since Apotex had already alleged non-infringement in another NOA, it could not do so again. Moreover, as Apotex had not argued invalidity in the previous NOA, they could not do so now.
Held: Application granted. Apotex cannot add to the contents of its NOA and try to establish non-infringement by evidence for which no basis is stated in the NOA. The NOA was deficient because it contained an allegation of non-infringement which relied on what was proven to be an incorrect construction of the patent. Therefore, Apotex's further allegation was not allowed to be raised by way of evidence or argument. In regards to issue estoppel, because Apotex had already asserted non-infringement of the patent in another NOA, it is estopped from arguing it in this proceeding. In addition, Apotex is not allowed to assert invalidity in this NOA, as invalidity should also have been argued in the first NOA. Therefore, issue estoppel applies to both allegations of non-infringement and invalidity.
(b) Trade Marks
1. Auld Phillips v. Suzanne's, January 17, 2005 FCTD (Simpson J.) Section 57 Expungement/Costs
Application under s. 57 to expunge the respondent's registration for SUZANNE'S on the basis that the respondent was not the first to use the trade mark and that the mark is not distinctive of the respondent's wares.
Held: Registration expunged on the basis of non-distinctiveness only. As of the date of the commencement of these proceedings, SUZANNE'S was not distinctive of the respondent's wares since there had been widespread use of the same mark by the applicant for a significant duration. Costs were not awarded because the applicant mishandled its evidence. The applicant's affiant swore that certain documents came from corporate records but on cross-examination he admitted that they had been obtained by an unidentified person from a museum. Moreover, the evidence had been cropped to make it appear that the applicant had used SUZANNE'S alone, as opposed to in combination with other words. The Court therefore drew a negative inference and concluded that the applicant had not used SUZANNE'S per se prior to the respondent's date of first use. (Based on other evidence, the Court did conclude that the applicant used SUZANNE'S per se at a later date.)
2. 417394 Alberta v. H2O Co. Beverages, February 10, 2005 FCTD (Simpson J.) Summary Judgment/Trade Mark Infringement
Application for summary judgment in a trade mark infringement action. The applicant owns a trade mark registration for H2OCOOL for a water cooler business. The respondent used the names H2O Co. and H2O Co. Water Company for its water cooler business. The applicant argued that Co. in the respondent's names would be interpreted as an abbreviation of “COOL”.
Held: Application granted. The Court found that the applicant's mark and the respondent's names are not inherently distinctive, and that they had not become known to any significant extent. However, the Court concluded that as a matter of first impression, the mark and names do look and sound alike because of the dominance of H2O, and on this basis concluded that they are confusingly similar. The respondent attempted unsuccessfully to amend its pleadings at the last moment to counterclaim that the trade mark registration is invalid on the basis of loss of distinctiveness.
3. Advantage Car & Truck Rentals v. 1611864 Ontario et al., March 7, 2005 FCTD (O'Reilly J.) Interlocutory Injunction /Jurisdiction/Irreparable Harm
Motion for an interlocutory injunction to prevent the owner of the registered trade mark ADVANTAGE from using such mark. The defendant argued that the Court could not enjoin its use of its registered mark because the Court cannot rule on the validity of its trade mark on an application for injunction.
Held: Motion dismissed because the plaintiff has not shown irreparable harm. Confusion has been shown to exist and is not denied by the defendant - individuals have booked cars from the defendant over the Internet but have been unable to locate the defendant when they disembark from a plane and are angry when the plaintiff does not have a car for them. This is not irreparable harm and the plaintiff could minimize any harm that it suffers by directing confused customers to the defendant.
Although the Court would be wary of interfering with the rights of a trade mark holder on an injunction application, the Court does have jurisdiction to issue an injunction in this situation.
4. WIC TV Amalco and Global Communications v. ITV Technologies, March 14, 2005 FCA (Pelletier, Noël, Evans JJ.A.) Appeal/Trade Mark Infringement
Appeal from Tremblay-Lamer J.'s decision that the respondent was not infringing WIC's registration for the trade mark ITV.
Held: Appeal dismissed. The appellant argued that the Trial Judge erred in not finding that its registered mark was very well known but the Court of Appeal stated, “Where the question before the Court is one of degree, requiring a judge to decide where an element falls along a continuum, the fact that the judge decides that the element falls higher or lower on the continuum than expected does not amount to a palpable and overriding error, unless there has been a failure to consider relevant evidence. The fact that specific portions of the evidence are not referred to in a judge's reasons does not mean that the judge failed to consider that evidence.” The appellant was also critical of the Trial Judge's conclusion that the parties' services (webcasting v. television broadcasting) were related but not similar, but the Court of Appeal noted that “[w]hatever may have been WIC's intentions in terms of expansion into webcasting, the jurisprudence is clear that a party's assertion of expansion into new areas of products or services, or the possibility of such an expansion, is insufficient to support a finding of confusion”.
(c) Copyright
1. Canadian Private Copying Collective v. Canadian Storage Media Alliance et al.; Apple Canada et al. v. Canadian Private Copying Collective et al.; Retail Council of Canada et al. v. Canadian Storage Media Alliance et al. , December 14, 2004 FCA (Linden, Noël, Evans JJ.A.) Constitutionality of Part VIII of the Copyright Act/Zero-rating Program/Tax versus Levy/Definition of Medium
Applications for judicial review of a decision of the Copyright Board that established the private copying levies to be collected by the Canadian Private Copying Collective (CPCC) for 2003/4 and held that the “zero-rating program” operated by the CPCC (which exempted certain purchasers from the levy) had no legal basis.
Held: Retail Council's application dismissed. Part VIII is in pith and substance copyright law. In determining whether a fee is a levy or a tax, there are 4 traditional indicia to be considered, plus one established by the Supreme Court in Westbank First Nations v. British Columbia Hydro and Power Authority. The Board was wrong in finding that the levy was not intended for a public purpose or levied by a public body (2 of the traditional indicia). The fifth indicium therefore remained to be considered, namely whether the levy can properly be labeled as a tax, or whether it is better described as a regulatory charge. The Court concluded that the scheme implemented by Part VIII is a complete and detailed code of regulation which comes within the description set out by the Supreme Court in Westbank. Therefore the Board correctly held that the levy was not a tax.
CPCC's application dismissed. The Board has consistently taken the position that the exemption extended by the CPCC to users who do not private copy is not authorized under the Copyright Act. The Board therefore disregarded the zero-rating program in setting the levy. The Court chose not to interfere with the Board's approach because the Board's reasons easily withstood the standard of review of unreasonableness simpliciter. Although the Board had no right to pronounce on the legality of the zero-rating program, that is not what the decision did. Rather, the Board made it clear that the CPCC can forego the collection of levies legally owing to it, if it so wishes, but the Board will not compensate the CPCC for the negative impact of the exemptions on its revenues.
Apple's application allowed. The Board was wrong in holding that permanently embedded memory in a MP3 player qualifies as medium subject to a levy. In so doing, the Board looked through the device to find the memory embedded therein. However, it refused to apply the same approach to other devices such as heart-rate monitors and telephones. Thus it is clear that it was the device, not the incorporated memory, that was the defining element of the levy. An MP3 player is not a medium as currently defined in Part VIII and it is up to Parliament to decide if such devices are to be added to the class of items subject to levy. (Obiter: The Board committed no error in setting the levy at a rate higher than that applied for.)
(d) Practice
1. Pfizer Canada and Pfizer v. Rhoxalpharma and The Minister of Health, December 1, 2004 FCTD (von Finckenstein J.) Filing Further Evidence/Federal Court Rule 312/Cross-examination on Affidavits
Appeal by the respondents from a decision of Aronovitch P. allowing the applicants to file further evidence after completion of cross-examinations of the respondent's affiant Dr. Petrov. Dr. Petrov was vigorously cross-examined on his affidavit and several inconsistencies came to light. The applicant moved under r. 312 to file a further affidavit rebutting Dr. Petrov's evidence. Based on the following grounds, the Prothonotary granted Pfizer leave to file new evidence: (1) the evidence responds to completely new information raised by Dr. Petrov during cross-examination; (2) the evidence does not amount to Pfizer splitting its evidence; (3) the evidence does not contain evidence that could have been submitted previously; (4) the evidence does not amount to Pfizer remedying its evidence post hoc; and (5) the evidence is required to safeguard the Court's interest in having the best and most conclusive evidence before it in determining the issues.
Held: The Prothonotary acted on a misapprehension of facts and consequently her decision cannot stand. Of the five grounds relied on by Aronovitch P., four are not borne out by an examination of the record. The Prothonotary observed that the evidence responds to completely new information raised by Dr. Petrov during cross-examination. Actually, Dr. Petrov was questioned on his affidavit and tried to defend his findings. To the extent that his testimony differs from his affidavit or statements, the weight given to his affidavit will be affected. This may undermine his credibility but it does not amount to completely new information. The Prothonotary also made two other findings: (a) that the affidavits to be introduced do not contain evidence that could have been submitted previously; and (b) that the evidence to be introduced does not amount to allowing Pfizer to split its evidence. Allowing the applicant to introduce such evidence now has the effect of allowing it to split its case by first rejecting the allegations on the basis of scientific argumentation and then after cross-examination, introducing its own experimental laboratory evidence. This also would be allowing the applicant to remedy its evidence post hoc.
2. J. Halford and Vale Farms v. Seed Hawk et al., January 12, 2005 FCA (Sharlow J.A.) Amendment of Pleadings after Judgement/Federal Court Rule 75(1)
Appeal from decision of Pelletier J. refusing the defendants' motion to amend pleadings. After judgment was issued dismissing the plaintiffs' claim for patent infringement and the defendants' counterclaim for declaration of invalidity, the defendant moved for reconsideration. The defendant alleged that Pelletier J. had erred in dismissing its counterclaim by not dealing with a ground of invalidity raised in the course of the trial, and further erred in finding that another ground of invalidity was not pleaded. The defendant moved pursuant to r. 75(1) to amend its pleadings to conform to the evidence. Pelletier J. held that the defendants' interpretation of the words “at any time” in r. 75(1) would allow a party to circumvent the doctrine of functus officio simply by moving to amend the pleadings after judgment.
Held: Appeal dismissed. Sharlow J.A. agreed with Pelletier J. that a trial judge has a broad discretion to allow amendments to the pleadings at any time prior to judgment, but that right is extinguished after judgment has been signed. At that point, there has been a final adjudication of the parties' rights which can only be attacked on appeal. Rule 75 does not give the Federal Court of Appeal jurisdiction to grant a motion, before the hearing of an appeal of a judgment of the Federal Court, for leave to amend the pleadings upon which the trial was heard. The Federal Court of Appeal may consider an appeal from an order of the Federal Court granting or refusing a motion to amend pleadings. The Federal Court of Appeal may also order an amendment to trial pleadings as one of the remedies on the appeal of a judgment of the Federal Court. However, the Federal Court of Appeal's jurisdiction to make such an order on appeal is not based on r. 75 but on r. 52(b)(i).
3. Bauer Nike Hockey v. Paul Regan, January 12, 2005 FCTD (Blais J.) Motion to Compel Answers
Appeal by the plaintiff from an order refusing to compel answers to questions asked on discovery. The case management Prothonotary had dismissed the plaintiff's application on two grounds: (1) The plaintiff's application was late given that the case management Prothonotary's “final” deadline for completion of examinations for discovery had passed; and (2) on the merits, the questions were not proper questions.
Held: Appeal dismissed. The Prothonotary's deadline was not respected and there was no clearly wrong error. However, the questions were appropriate since the witness was also the inventor of the patent at issue. Most of the questions were not questions of opinion but rather questions of fact. Where the information sought is technical in nature although it can arguably be said to require expression of opinion by the witness, the principle to be applied is that the factual nature of the question takes precedence and the question should be answered. Nevertheless, although the questions should have been allowed, by not respecting the deadline for the conclusion of discovery, the plaintiff forfeited the right to compel answers to those questions.
4. Astrazeneca Canada et al. v. Apotex, January 18, 2005 FCTD (Kelen J.) Striking Statement of Claim/Particulars of Pleadings
Appeal by Apotex from an order of Milczynski P. dismissing Apotex's motion for an order striking out all or portions of the plaintiffs' statement of claim or, alternatively, for particulars. The Minister of Health issued an NOC to Apotex for its omeprazole capsules in January 2004. In the underlying action, Astrazeneca had unsuccessfully sought judicial review of the Minister's decision, and, consequently, commenced an infringement action against Apotex.
Held: Appeal allowed in part. The decision to strike a statement of claim is a matter vital to the case so the Court must review this question on a de novo basis. The most recent jurisprudence establishes a high threshold for striking out a statement of claim. The statement of claim did not set out material facts demonstrating that the defendant had infringed the plaintiffs' patents. Accordingly, the Court allowed the appeal in part, and ordered that these particulars be provided as an amendment to the statement of claim. Similarly, a motion to strike a paragraph from a statement of claim should be reviewed on a de novo basis if removing the paragraph would dispose of the cause of action. The Court was satisfied that the claims challenged by Apotex would not dispose of the action and the Prothonotary's decision was not based upon a wrong principle or a misapprehension of facts. One claim set out three particular instances of alleged deception and misleading information but did not limit the particulars to these three examples, it uses the word "includes" as a preface. This "open-ended" pleading is improper, but the plaintiffs will be able to explore at discovery other types of information submitted by Apotex to the Minister of Health, and categorize them as deceptive or misleading at the trial to support the plaintiffs' claim for punitive damages.
5. Apotex v. Merck, January 18, 2005 FCA (Létourneau J.A.) Accounting of Profits/ Documentary Requests/Delay of Proceedings
Appeal by Apotex from decisions of the prothonotary and MacKay J dismissing certain of Apotex' documentary requests. Apotex sought to oppose Merck's claim to an entitlement to an accounting of profits as a result of an infringement of their patent relating to enalapril and enalapril maleate. Both the Motions Judge and the Prothonotary found that Apotex was merely trying to re-litigate an issue conclusively decided by Justice MacKay at trial.
Held: Appeal dismissed. Apotex's documentary requests were irrelevant to the matter of Merck's entitlement to an accounting of profits. Apotex's allegation of market interference was rejected. As a matter of fairness, the accounting remedy should not be granted over the objection of the infringing party unless that party is first given a reasonable opportunity to argue that equity or the conduct of the patentee should preclude the accounting remedy. Legitimate actions of a patentee to prevent infringement, however, cannot be relevant to the issue of entitlement to profits. It is only if these actions cross the line and become abusive that they might be relevant. Due to the delay created by all these proceedings, the lack of merit of the appellant's contentions and the element of defiance involved in the attempt to re-litigate conclusively decided issues, the Court granted Merck substantially indemnification resulting in an award of an additional $12,000 in costs.
6. Apotex v. Canada (Minister of Health), January 25, 2005 FCTD (von Finckenstein J.) Confidentiality Order/Interests of Third Parties
Appeal from a decision of Tabib P. denying AstraZeneca's application for access to certain documents subject to a confidentiality order in a proceeding between Apotex and the Minister of Health. AstraZeneca was not a party to the proceeding, but suspected that the confidential information related somehow to its drug Losec. Tabib P. dismissed AstraZeneca's motion to vary the protective order because there was no issue raising a wider public interest, aside from the general interest in having open court proceedings.
Held: Appeal dismissed. The facts make it clear that AstraZeneca is a "stranger" to the present proceeding and its subject matter. The matter is purely a dispute between the Minister and Apotex regarding the terms of the NOC, and is an issue regarding health and safety, not patents. Tabib P.'s rationale for rejecting an economic interest argument was not based on the lack of direct interest. It concerned the lack of any type of nexus between AstraZeneca's economic interest and the proceedings under the FDA regulations. The Court was prepared to accept that a compelling interest can amount to something less than a direct interest, but it must have a legal component. If mere economic interest qualified, any competitor of Apotex's could move to be allowed access to the protected confidential information. This would render the order useless.
7. Seanix Technology v. Synnes Canada, February 15, 2005 FCTD (Lemieux J.) Federal Court Rule 75/Motion to Amend Statement of Defence
Appeal from Prothonotary's decision that allowed the defendant to amend the Statement of Defence in order to add certain defences and to include a counterclaim challenging the validity of the plaintiff's two trade mark registrations.
Held: Appeal dismissed. The Prothonotary's decision was correct. Although the amendments raise new defences and a new cause of action in the counterclaim, no relevant limitation period has been missed. The defendant was therefore not required to establish that the facts arise out of the substantially the same facts as originally pleaded. An amendment should be allowed at any stage of an action for the purpose of determining the real question and controversy between the parties provided that it is in the interest of justice to allow such an amendment and to do so will not result in an injustice to the other party, which is not capable of being compensated by an award of costs. The controversy between the parties is whether the defendant has infringed the plaintiff's trade marks. The defences advanced by the defendant are proper and material defences to the plaintiff's actions and the counterclaim is rationally connected to those defences. WCC Containers Sales v. Haul-All Equipment makes it clear that material false statements that are fundamental to the registration may be a basis for invalidation; therefore it is not plain and obvious that the amendments in issue disclose no reasonable defence.
II. OTHER COURT DECISIONS
1. Steinhart v. Moledina and Planetware, February 11, 2005 OSCJ (Ground J.) Striking Pleadings/Copyright Infringement /Liability of Director or Officer
Motion by the individual defendant, Moledina, to strike the pleadings against him on the basis that the statement of claim discloses no reasonable cause of action against him personally. The plaintiff pleaded that Moledina, an officer and the directing mind of the corporate defendant, infringed its copyright by authorizing the reproduction of its work.
Held: Statement of claim struck as against the defendant Moledina. Every pleading must contain a concise statement of the material facts on which the party relies. The courts will not allow a corporation to be used as an instrument of fraud but a small, one-man or two-man corporation should have the benefit of the same approach to personal liability as a large corporation. Ground J. referred to Painblanc v. Kastner (1994) 58 C.P.R. (3d) 502 (F.C.A.) for three examples of pleadings which, when combined with facts setting out the director's control over the corporation, might give rise to an arguable case of personal liability.
2. Spiros Pizza & Spaghetti House v. Riviera Pizza, March 15, 2005 ABQB (Power J.) Injunction/Passing Off/Punitive Damages
Action seeking a permanent injunction to restrain the defendants from passing-off the plaintiffs' tradename and trade mark SPIROS PIZZA. An interim injunction was already in place. The defendants purchased the business operating as Spiros Pizza but understood that they did not have the right to open any other restaurants under that name without the plaintiffs' permission; the defendants had the right to use the name SPIROS PIZZA during their tenancy. The defendants subsequently opened a restaurant called UNCLE SPIROS PIZZA. The plaintiffs objected and the UNCLE SPIROS PIZZA restaurant subsequently ceased operation. The parties later discussed the sale of the name SPIROS PIZZA but no agreement was reached. At a later date, the defendants opened a restaurant called SPIROS which resulted in the plaintiffs seeking and obtaining the interim injunction.
Held: Permanent injunction issued. The defendants have misused the tradename SPIROS PIZZA in breach of the terms of their lease. Damages awarded for passing off. However, the defendants' conduct is not of the level which would justify the imposition of punitive damages.
III. OPPOSITION BOARD DECISIONS
1. Sanofi-Synthélabo v. Sabex 2002, August 5, 2004 (McKay) Descriptiveness /Distinctiveness
Proposed use application for SAB-BETAXOLOL for pharmaceutical products, namely ophthalmic drops for the treatment of glaucoma and having betaxolol as an ingredient. Opposition based, inter alia, on s.12(1)(b) and distinctiveness because “betaxolol” is a generic name for anti-hypertension products.
Held: Opposition rejected. A mark can be registered with a clearly descriptive component as long as there is sufficient registrable matter to render the mark in its entirety registrable - SAB is sufficiently distinctive to make the present mark registrable and distinctive.
2. Canadian Medical Association v. Enrich, November 22, 2004 (Bradbury) Section 12(1)(e)/Descriptiveness
Proposed-use application for DR. BERMAN'S for skin cleansing gels, skin moisturizers, skin toners, skin and eye gels, facial scrubs, facial masks and skin creams. BERMAN'S disclaimed. Opposition based, inter alia, on s.12(1)(b) because the mark is clearly descriptive or deceptively misdescriptive in that the average consumer would assume that the wares have been formulated, designed, produced, sold or endorsed by a “doctor” and s. 12(1)(e) because the mark so nearly resembles the official mark DR. as to be likely to be mistaken for it.
Held: Opposition rejected. The applicant's wares are in fact endorsed by a Dr. Berman. DR. BERMAN'S is not identical to or almost the same as the official mark DR.
3. Canadian Medical Association v. Dr. C. Soldan GmbH, November 22, 2004 (Bradbury) Section 30(d) /Deceptively Misdescriptive
Application for DR. C. SOLDAN for medications for treating colds, flus and congestion; cocoa; chocolate; candies; perfumery; cosmetics; essential oils; cosmetic soaps based upon use and registration in Germany. Opposition based, inter alia, on s.30(d) because the applicant had not used the mark in Germany in association with all of the wares as of the filing date, s. 12(1)(a) because SOLDAN is primarily merely a name or a surname, and s. 12(1)(b) because the mark is clearly descriptive or deceptively misdescriptive in that the average consumer would assume that the wares have been formulated, designed, produced, sold or endorsed by a qualified medical doctor which is not the case.
Held: Application refused in part.
The s. 30(d) ground succeeded with respect to cosmetics. The opponent met its light burden with respect to this ground by evidencing that these wares were not listed for sale on the applicant's web site. Although the Board appreciated that this did not mean that the wares were never sold in Germany prior to the filing of the application, it concluded that this evidence was sufficient to require the applicant to evidence such use, which it did not.
The s. 12(1)(a) ground failed because the opponent pleaded that Soldan was the name of an individual, not that Dr. C. Soldan was the name of an individual. In any event, while the evidence showed that there were 2 Canadian telephone listings for “C. Soldan”, there was no evidence that either of these individuals could be addressed as “Dr.”
The s. 12(1)(b) ground succeeded with respect to medications because, on a balance of probabilities, the average consumer would as a matter of first impression interpret the mark as indicating that a medical doctor named Dr. C. Soldan was associated with these wares. As the applicant has not evidenced that the individual who originally created these medications was a medical doctor (apparently he was a chemist), the mark is deceptively misdescriptive of the medications. (The Board Member did not think that the public would associate a medical doctor with the non-medicinal wares.)
4. Fountain Netherlands Holding v. Nu Skin International, November 22, 2004 (Bradbury) Confusion
Use-based application for ALOE FOUNTAIN for sports drinks containing aloe vera. ALOE disclaimed. Opposition based, inter alia, on s.12(1)(d) due to confusion with the mark FOUNTAIN BRAND registered for “coffee, tea, non-dairy crème, sugar and broth concentrate for mixing with hot water and sold in special disposable cartridges”.
Held: Opposition rejected. Although there is a moderate degree of resemblance between the marks, the opponent's mark is not inherently strong and there is no evidence of it having acquired distinctiveness. The differences between the marks combined with the differences between their wares should suffice to make confusion unlikely.
5. Truserv v. Sara Lee, November 23, 2004 (Herzig) Confusion
Use-based application for STEDMAN for T-shirts and sport shirts. Opposition based, inter alia, on s. 12(1)(d) due to confusion with the mark STEDMANS registered for the operation of a department store.
Held: Opposition rejected. The parties' marks possess little inherent distinctiveness due to their surname connotation. The opponent began to shift promotion away from its STEDMANS mark to a new mark (V&S) more than 7 years prior to the earliest material date. There is no evidence that businesses similar to that of the opponent sell clothing under the mark of their retail service. The Board Member accepted the applicant's position that “the mere fact that a party may be using a trade-mark in association with retail activities or other services, and sells products within the scope of those services does not extend the ambit of protection in its trade-mark to cover all of the wares sold incidentally within the scope of its retail activity.” Clothing is only one of hundreds of items sold in the opponent's department stores.
6. Bryan's Fashions v. Calcados Bibi, November 23, 2004 (Folz) Confusion
Proposed-use application for BIBI & Design for various footwear offered to retail sale only through boutique shoe stores. Opposition based, inter alia, on s. 12(1)(d) due to confusion with the mark BIBI registered for women's wear, jewellery and related services.
Held: Application refused. Confusion likely given the high degree of resemblance between the marks, the relationship between the footwear and clothing and the potentially overlapping trades.
7. Pursell Vigoro Canada v. Nu-Gro IP, November 24, 2004 (Martin) Confusion
Proposed-use application for GRUBEX for insecticides. Opposition based, inter alia, on s.12(1)(d) due to confusion with the marks KILLEX and CRABEX registered for herbicides and insecticides.
Held: Opposition rejected. Confusion unlikely largely due to the common use of EX-suffixed marks by third parties in this field.
8. Anheuser-Busch v. Miller Brewing, November 25, 2004 (Herzig) Descriptiveness /Distinctiveness
Proposed-use application for LITE BEER & Design for caps, visors, t-shirts…picnic coolers, pens, beach chairs, beach towels, sunglasses, key rings…coffee mugs…and umbrellas. Opposition based on s. 12(1)(b) and lack of distinctiveness in that the mark cannot distinguish any one source of merchandising items related to light beer.
Held: Application refused on the distinctiveness ground only. The design features of the mark do not increase the mark's distinctiveness. The evidence showed that the applied for wares are commonly employed by brewers collateral to the sale and promotion of beer and that the Regulations of the Food and Drugs Act requires brewers who wish to promote a certain type of beer to use the term “light beer”. Brewers commonly use “lite/light” and/or “beer” together with other indicia referring to the brewer (as opposed to LITE BEER on its own). Based on prior case law, the mark is not clearly descriptive of the applied for wares.
9. Quality Meat Group v. Macgregor's Meat & Seafood, December 9, 2004 (Bradbury) Confusion
Proposed-use application for NORTH COUNTRY SMOKEHOUSE for smoked and/or cooked meat and seafood. SMOKEHOUSE disclaimed. Opposition based, inter alia, on s.12(1)(d) due to confusion with the mark SMOKE HOUSE registered for various meat products.
Held: Application refused. Although both marks are inherently weak, the opponent has used its mark for a longer period of time (30 years) and to a greater extent. The applicant did not evidence any use of its mark. The applicant's evidence of the state of the register and marketplace was insufficient to conclude that others are using the word SMOKEHOUSE in this field.
10. Hearst Holdings v. Popeye's Sailors Exchange, December 9, 2004 (Bradbury) Section 30(b)/Confusion
Use-based application for POPEYE'S SAILORS EXCHANGE for retail selling of marine equipment and supplies, etc. SAILORS EXCHANGE disclaimed. Opposition based, inter alia, on s. 30(b) because the applicant did not list all its predecessors in its application and s. 12(1)(d) due to confusion with the mark POPEYE registered for a cartoon strip.
Held: Opposition rejected. Although the evidence shows that at one point of time the number of partners in the applicant partnership changed from two to three, the Board Member held that this did not support the s. 30(b) ground of opposition because it is not clear that the two person partnership would qualify as a predecessor of the three person partnership. (She also noted that the Trade-marks Office does not require the names of individual partners to be listed.) Regarding the likelihood of confusion, although the opponent claims use since 1930 its evidence only shows use in one city in Québec. In addition, the sales figures that the opponent provided related to “Popeye characters” not to the POPEYE trade mark and the evidence concerning the licensing of the POPEYE mark did not evidence any Canadian sales. There was also evidence of other parties using POPEYE as part of a trade mark/name in Canada and no evidence of confusion between the parties' marks despite 10 years overlapping use. The great difference between the applicant's services and the opponent's wares (including its licensed wares) was a significant factor in finding that confusion was not likely.
11. Doris Hosiery Mills v. Warnaco, December 9, 2004 (Carrière) Confusion
Proposed-use applications for SECRET SHAPERS and OLGA SECRET SHAPERS for camisoles, panties, slips, bras, sleepwear and the like. Opposition based, inter alia, on s.12(1)(d) due to confusion with the mark SECRET registered for pantyhose and hosiery.
Held: Applications refused. The applicant has not discharged its onus with respect to confusion given that the opponent has used its mark for a longer period of time in association with related wares that travel similar channels of trade.
12. Wing Wah Food Manufactory v. China Brands Food Products, December 13, 2004 (Martin) Proper Reply Evidence /Dissolution and Revival of Applicant Corporation/Section 30(b)/Confusion
Use-based application for PEONY BRAND & Design for food colour solutions. Opposition based, inter alia, on s. 30(b) because there has not been continuous use of the applicant's mark and s. 12(1)(d) due to confusion with WING WAH MOON CAKES & Design and TAI WING WAH FLOWER & Design registered for pastries.
Held: Opposition rejected. During cross-examination of the applicant's affiant, the opponent asked questions about some corporate documents that it had “found” which referred to the applicant company being revived. The affiant, who had some difficulty with the English language, responded that he had been too busy to do the paperwork. The opponent then filed the corporate documents as its reply evidence. The Board Member held that this was improper reply evidence as it was clear that the opponent had these documents before the cross-examination and such evidence is not in reply to any evidence of the applicant's as the applicant never denied the dissolution and revival. Even if the corporate documents were in evidence, the Board would not have found them to satisfy the opponent's initial burden with respect to its s. 30(b) ground as the applicant's evidence shows that there has been continuous use and the revival of an Ontario corporation rectifies any deficiencies regarding property rights that might otherwise have arisen due to its dissolution.
The marks are not confusing in view of the differences between the wares, trade and marks. The only similarity between the marks is the representation of one or more flowers and that is not the dominant portion of the applicant's mark.
13. Loblaw's v. Telecombo, December 15, 2004 (Herzig) Confusion/ Section 30(b) /Evidence of Examination File Contents
Use-based application for RESIDENT'S CHOICE Design for posters, stickers, magazines… pens and various services such as market research and billing services, providing rebates through the use of a membership card covering the services of a retail department store, restaurant services, retail grocery services, hotel and travel agencies, retail gasoline services, retail pharmacies. RESIDENT'S disclaimed. Opposition based, inter alia, on s. 12(1)(d) due to confusion with the mark PRESIDENT'S CHOICE registered for clothing, fertilizer, laboratory supplies, and a plethora of food and household products and s. 30(b) because the mark has not been in use as claimed.
Held: Application refused only with respect to retail grocery services. Neither mark is inherently distinctive. The length of time and acquired reputation favour the opponent and there is a high degree of resemblance between the marks visually. The opponent's mark is well known in association with food and household items and the operation of retail grocery stores offering those items. In addition, the opponent's mark had acquired some reputation for ancillary services such as retailing of clothing, flowers, lawn and garden products and pharmaceutical products. The opposition failed with respect to the wares and services other than retail grocery services because “ the remaining wares and services… have little or no connection to the opponent's main business of providing food and household products through retail outlets” and “the reputation for the opponent's mark attaches to the opponent's main business”.
The opponent wanted to rely on a letter filed by the applicant during examination of this application to meet its evidential burden with respect to the s. 30(b) ground. The Board held that the letter did not form part of the record in these proceedings because the opponent did not submit it as part of its evidence. (If properly introduced, the letter would have satisfied the initial burden.)
14. Tradition Fine Foods v. 3102-6636 Québec, December 16, 2004 (Carrière) Confusion
Proposed-use application for BAGEL TRADITION'L & Design for baked goods (bagels, dough and pastry), cream cheese, and the operation of restaurants and related services. Opposition based, inter alia, on s.12(1)(d) due to confusion with the mark TRADITION registered for baked goods, namely muffins, croissants, cookies, cakes and pastries.
Held: Opposition rejected. Confusion is not likely because the opponent's mark is inherently weak, the resemblance between the parties' marks is “rather small”, and the word “tradition” is commonly used by others in the food industry.
15. Tension 10 v. Tension Clothing, December 21, 2004 (Carrière) Confusion/Initial Burden/Admissibility of Unsigned Exhibits/Civil Code of Procedure of the Province of Québec /Cross-examination Without Reservation of Rights
Proposed-use application for TENSION for ladies' clothing. Opposition based on s. 16 due to confusion with the trade name Tension 10 Inc. previously used in association with the wholesale of women's clothing.
Held: Opposition rejected. The only evidence as of the material date comprised two invoices issued by a third party to Tension 10 Inc. - these do not satisfy the opponent's initial burden
The applicant argued that the opponent's exhibits should be disregarded because they were not identified in the body of the affidavit and were not endorsed by the commissioner of oaths as required by the Federal Court Rules. However, the Board Member found the exhibits to be acceptable on the basis that they were filed in compliance with the requirements of the Civil Code of Procedure of the Province of Québec. In the alternative, the Board Member noted that the applicant cross-examined the affiant, without reserving any right to contest admissibility. The affiant was sworn in prior to the cross-examination and the affiant's exhibits, which were filed as an exhibit to the cross-examination, were the subject of cross-examination, so the exhibits can also be considered admissible as part of the cross-examination evidence.
16. Olympia Group v. Rui Royal International, December 21, 2004 (Folz) Confusion/Information and Belief
Proposed-use application for EZ MARK for tape measures. Opposition based, inter alia, on s. 16 due to confusion with the mark EZ READ, which is the subject of a previously filed application for tape measures.
Held: Opposition rejected. Confusion is not likely because there is little resemblance between the marks in the ideas suggested and EZ is a common prefix of marks associated with hand tools.
Opponent's affidavit was declared inadmissible. The affiant stated that he had reviewed his company's files and spoken to company employees regarding this matter and as such had knowledge of and did believe the matters declared to. It was impossible for the Board to know which portions of the affidavit were based on hearsay, with the result that it was disregarded in its entirety.
17. London Regional Transport v. Planet Luv-Tron, December 21, 2004 (Bradbury) Section 12(1)(e)/Distinctiveness
Proposed-use application for LONDON UNDERGROUND for footwear and jewellery. Opposition based, inter alia, on s. 12(1)(e) since the mark is “confusing pursuant to s.9(1)(n)(iii) with the official mark” UNDERGROUND & Design and non-distinctiveness due to the prior making known of the opponent's UNDERGROUND & Design and LONDON UNDERGROUND marks.
Held: Opposition rejected. The s. 12(1)(e) ground was rejected for 3 alternative reasons: 1) the ground was improperly pleaded in that the test is not whether a mark is confusing with an official mark but rather whether it so nearly resembles as to be likely to be mistaken for an official mark; 2) considering only the factors in s. 6(5)(e), the applicant's mark is not likely to be mistaken for the official mark; 3) the official mark was not published until after the filing of the statement of opposition resulting in the pleading being void ab initio (regardless of the fact that publication did occur prior to the material date for deciding such a ground).
The distinctiveness ground failed because there was no evidence of the opponent using its marks in Canada and no evidence that Canadians are familiar with the opponent's marks as a result of visiting England. In addition, the only evidence of use of LONDON UNDERGROUND by the opponent anywhere in association with wares was with CD-Rom products and books.
18. Alcohol Countermeasure Systems v. Parent's Alert, December 21, 2004 (Bradbury) Confusion
Application for PARENT'S ALERT for drug and alcohol test kits and related services based on use and registration abroad. Opposition based, inter alia, on s. 12(1)(d) due to confusion with the mark ALERT registered for alcohol testing devices.
Held: Application refused. Both marks are inherently weak but the opponent has used its mark for 7 years and the public may assume that the applicant's product is a special version of the ALERT product created for parents. Although others have adopted the word ALERT in trade marks, none of these third party marks relate to this specific type of ware.
19. Maison Cousin v. Cousins Submarines, January 4, 2005 (Carrière) Confusion/French-speaking Consumer
Proposed use application for COUSINS for sandwiches, beverages and restaurant services. Opposition based, inter alia, on s.12(1)(d) due to confusion with MAISON COUSIN & Design registered for bread, cakes, meats, salads, sandwiches…
Held: Application refused with respect to sandwiches only. Since the opponent's mark comprises French words, the Board Member concentrated on the likelihood of confusion in the mind of a French-speaking consumer. Because “maison” means “business”, that word simply puts emphasis on the word “cousin” in the opponent's mark. A French-speaking person would not pronounce the “s” at the end of the word “cousins” in the applicant's mark, which increases the resemblance between the marks.
20. Alpha Sportswear v. International News, January 5, 2005 (Herzig) Confusion
Use-based application for ALPHANUMERIC & Design for clothing. Opposition based, inter alia, on s. 12(1)(d) due to confusion with the mark ALPHA & Design registered for clothing.
Held: Opposition rejected. The marks suggest different ideas. The opponent's mark is inherently weak because “alpha” suggests that the wares are “first“ quality or “dominate” the marketplace. Although the applicant's application and the opponent's registration are not so restricted, the evidence shows that the opponent specializes in team uniforms while the applicant's clothing would appeal to skateboarders and snowboarders. The evidence also showed that the opponent sells its wares by catalogue through retail sporting stores while the applicant sells through non-specialized retail stores and boutiques.
21. Unilever v. Aliments Nutri Slim, January 6, 2005 (Bradbury) Trade Mark Rules 31 and 33/Correction of Applicant's Name /Section 30(e)/Confusion
Proposed-use application for NUTRI SLIM Design for “des liquids nutritionnels (substitute de repas) pour le contrôle de poids”. SLIM disclaimed. Opposition based, inter alia, on s.30(e) because the applicant could not have intended to use the mark since the corporation named in the original application never existed and s. 12(1)(d) due to confusion with the mark SLIM-FAST registered for meal replacement products.
Held: Opposition rejected. Confusion not likely because of the differences between the two marks. To conclude otherwise would be to grant the opponent a monopoly in the word SLIM with respect to dietary products, which would not be appropriate given the descriptive nature of the word SLIM and the fact that others have incorporated this suitable word into trade marks used in this field.
In support of its s. 30(e) ground, the opponent pointed to a letter in the prosecution file that indicated that the corporate name listed in the original application never existed. Subsequent correspondence showed that such name was inserted by error and the examination division corrected the name. The Board Member held that this was not a change in the applicant (which would contravene r. 31) but a correction that was properly dealt with under r. 33. Provisions to correct a clerical error would be of no use if they did not have a retroactive effect.
22. Boston Pizza International v. Boston Chicken, January 7, 2005 (Martin) Section 30(b)/Confusion/Effect of Assignment on Distinctiveness
Proposed-use application for BOSTON MARKET for restaurant services and prepared foods. Opposition based, inter alia, on s.12(1)(d) due to confusion with the mark BOSTON PIZZA registered for restaurant services, pizza and spaghetti.
Held: Application refused. The applicant's mark is inherently distinctive but not inherently strong and there is no evidence that it has acquired any reputation in Canada. The opponent's mark is also inherently distinctive and not inherently strong; however, it has become well known in parts of Canada. The length of time that the marks have been used favours the opponent. The services are identical and it is apparent that the parties are potential competitors. The similarities between the marks is such that a consumer familiar with the BOSTON PIZZA chain might well assume that BOSTON MARKET is an expanded operation of the opponent. The existence of a handful of small, individual restaurants in a few small towns in Canada that begin with the word BOSTON has little effect on the distinctiveness of the opponent's more than 150 BOSTON PIZZA restaurants. The Board Member rejected the applicant's argument that the assignment of the BOSTON PIZZA mark to the opponent two and a half years ago (with the previous goodwill residing in another company for tax purposes) affected the distinctiveness of the opponent's mark. The opponent took active steps to educate the public as to the change in ownership and it is apparent that the consistent use of the BOSTON PIZZA mark under the new regime has not affected its distinctiveness.
23. Clic Import Export v. 3430961 Canada, January 14, 2005 (Bradbury) Section 30(a)/Confusion
Use-based application for AAAAA JAGUAR BRAND & Design for rice. Opposition based, inter alia, on s. 30(a) and s. 12(1)(d) due to confusion with the mark AAAAA TIGER BRAND & Design registered for rice.
Held: Application refused on both grounds. Re s. 30: The application claimed use since 1993 but the applicant's affiant stated that sales of JAGUAR BRAND rice began in 1995. Moreover, the affiant explained that it added the letters AAAAA to the mark in 2001 in order to make the mark more distinctive. Thus the mark applied for had not been used when the application was filed and one cannot argue that the addition of the letters AAAAA at the beginning of the mark did not result in a new mark because, as supported by the affiant's statement, this addition was not “very minor”. Re s. 12(1)(d): Both the jaguar and the tiger are presented as a side view of the cat moving to the left and there is no evidence of other parties displaying a wildcat in association with rice.
24. Fossil v. Steve Emeny, January 18, 2005 (Folz) Evidential Burden re Section 30(e)
Proposed-use application for BRAIN BUZZ for an extensive list of wares and services. Opposition based, inter alia, on s. 30(e) because the applicant did not intend to use the mark.
Held: Opposition rejected. The opponent did not meet its evidential burden. It filed an affidavit from a private investigator who evidenced that there was no phone listing for BRAIN BUZZ and that the applicant resided in a building that could not support commercial activity, plus an affidavit showing numerous trade mark applications filed by the applicant for a long list of wares and services. The applicant attested that his business will reside on the Internet and that his business launch has been delayed by this opposition. In this case, the opponent's burden ought not to be treated as lighter than usual because the applicant filed evidence and the opponent chose not to cross-examine.
25. Guess? v. Slide Sportswear, January 18, 2005 (Carrière) Descriptiveness
Proposed-use application for RAW DENIM for clothing. Opposition based, inter alia, on s.12(1)(b).
Held: Application refused because the evidence established that the words “raw denim” clearly describe the fabric that the clothing is made of (or deceptively misdescribe the wares if they are not made of “raw denim”).
26. Joseph v. X.E.S.-NY, January 25, 2005 (Herzig) Confusion
Proposed-use application for JOSEPH A. QU'EST-CE QUE C'EST SILK? for ladies apparel. Opposition based, inter alia, on s. 16 due to confusion with the mark JOSEPH previously used for ladies clothing.
Held: Opposition rejected. The opponent's mark does not possess a high degree of inherent distinctiveness due to its significance as a name or surname. Ten third party registrations were located for clothing marks that include the word JOSEPH. The opponent's mark is not entitled to a wide ambit of protection in the absence of evidence that it has acquired a significant reputation through use or advertising.
27. Industria De Diseno Textil v. Yellow Group, January 30, 2005 (Carrière) Confusion
Proposed-use application for ZERIA for footwear. Opposition based on s. 12(1)(d) due to confusion with the mark ZARA registered for clothing, footwear and retail services.
Held: Opposition rejected. The opponent's evidence failed to show any use of ZARA with wares in Canada. Although there was minimal evidence of use of ZARA in Canada with the operation of a retail outlet, it was not clear if the opponent controlled the character of the services. As a result, a consideration of the extent to which each of the marks had become known and the length of time each had been used favoured the applicant. Each of the marks possesses a high degree of inherent distinctiveness and there is a low degree of resemblance between them. There is no similarity in the ideas suggested by each mark and no evidence as to how either would be pronounced.
IV. SECTION 45 DECISIONS
1. Sim & McBurney v. Netlon, December 16, 2004 (Savard) Section 50/ Sufficiency of Evidence
TENSAR & Design registered for plastic grids for use in civil engineering and building and a number of other wares.
Held: Registration restricted to plastic grids for use in civil engineering and building (the only wares shown by the evidence to have been sold in association with the registered mark). The affiant stated that the registrant has licensed its proprietary manufacturing process to his company. For the purposes of s. 45, such a statement is sufficient to satisfy s. 50 as there is a license and the production of the wares using the registrant's manufacturing process suggests that the wares are manufactured according to standards set by the registrant and therefore under the control of the registrant.
2. Cassels Brock & Blackwell v. Plesman Communications, December 16, 2004 (Savard) Special Circumstances
MONEYLINE registered for on line computerized catalogue services advertising the availability of computer hardware, computer software and computer peripherals. No evidence of use was filed; instead the evidence focused on special circumstances to explain the absence of use.
Held: Registration expunged. The special circumstances of a “corporate reorganization” and “economic circumstances which have affected the various sectors of the New Economy” could have excused an absence of use for a brief period of time but are insufficient to excuse the absence of use for 6 years (the length of time between the issuance of the registration and the s. 45 notice). Nothing in the evidence explains why the mark was not used before the corporate reorganization and no details have been provided to support the allegation that use will begin in the near future.
3. Lapointe Rosenstein v. Tomex, December 23, 2004 (Savard) Ambiguous Evidence
GALLIANO registered for various items of clothing.
Held: Registration restricted to pants. The evidence concerning the remaining wares was ambiguous and was therefore interpreted against the interests of the registrant. In particular, the affiant provided photos of different types of garments bearing the mark and stated that “garments such as those” were sold during the relevant period. He should have said that “each of these garments were sold during the relevant period in association with the trade mark”.
4. Gowling Lafleur Henderson v. Lassonde, December 23, 2004 (Savard) Inconsistent Evidence/Section 50
FRUITÉ Design registered for non-alcoholic fruit drinks.
