Recent Decisions October 2006
I. FEDERAL COURT DECISIONS
(a) Patents
1. Biovail and GlaxoSmithKline v. The Minister of Health and Sandoz Canada, June 21, 2006 FCTD (O'Reilly J.) Prohibition Order/Non-Infringement/Essential & Non-Essential Elements/Sustained Release Agents/Stabilizing Agents/Notice of Compliance (Patented Medicines) Regulations
Application by Biovail seeking an order prohibiting the Minister from issuing an NOC to Sandoz for a tablet that combines bupropion hydrochloride with hydroxypropyl cellulose (HPC), a sustained release agent, until after the expiry of the '320 and '364 patents. Sandoz alleges non-infringement of the '320 patent because it intends to use HPC, a different sustained release agent than HPMC, which is the sustained release agent claimed in the patent. Biovail argued that Sandoz infringed the '320 patent as it simply replaced HPMC with the well-known substitute HPC. Biovail also argued that a person skilled in the art of drug formulation would understand that where a patent identified HPMC as a sustained release agent, HPC could be readily substituted. Sandoz argued that the two substances cannot be automatically substituted as testing using various quantities and grades of HPC would be required to arrive at a medically appropriate and effective formulation. Sandoz alleges non-infringement of the '364 patent because it will not use any of the stabilizing agents listed in the patent. Biovail argued that Sandoz infringed the '364 patent because Sandoz used HCl as a stabilizing agent in its manufacturing process and that HCl remains present in its formulation. Sandoz alleged that the HCl in its formulation does not serve as a stabilizer, that it is removed entirely during manufacture, and that it is not an agent specified in the '364 patent.
Held: Application dismissed. Biovail did not discharge its burden of proving that Sandoz's allegations, namely, that its new drug will not infringe Biovail's '320 and '364 patents, are unjustified. The inventor of the '320 patent, when specifying HPMC as the sustained release agent in the formulation, considered HPMC to be an essential element and potential substitutes or equivalents, such as HPC, were not contemplated. A person skilled in the art of drug formulation, who read the '320 patent, would have realized that it would not be possible to simply substitute HPC for HPMC, because it would require further experimentation with different quantities and grades of HPC to develop a substantially similar product. With regard to the '364 patent, the Court held that Sandoz’s formulation did not contain HCl. The Court noted that even if it did, the inventor of the '364 patent, when specifying particular stabilizers, did not contemplate that HCl was included within its terms.
2. Aventis Pharma and Sanofi-Aventis Deutschland v. Pharmascience and The Minister of Health, July 18, 2006 FCTD (Gauthier J.) Inadequacy of NOA/Prohibition Order/Patented Medicines (Notice of Compliance) Regulations
Application by Aventis seeking a declaration that Pharmascience's NOA was not a NOA and detailed statement under the Regulations. In the alternative, Aventis sought an order prohibiting the Minister from issuing an NOC to Pharmascience for ramipril oral capsules until after expiration of the '948 patent. Pharmascience was seeking an NOC for the treatment of hypertension and alleged non-infringement of the '948 patent, which was directed to the use of ramipril in combination with calcium antagonists in the prevention and therapy of proteinuria. Aventis argued that Pharmascience's NOA was deficient because it failed to explain how infringement by patients would not occur. Aventis also argued that Pharmascience's allegation of non-infringement is not justified because infringement by patients would inevitably occur. Aventis further argued that references in Pharmascience’s product monograph teach uses of ramipril that are protected by its patent.
Held: Application dismissed. The NOA was adequate as it contained a clear reference to the fact that its marketing would be directed toward the treatment of hypertension. Following the recent decision in Pharmascience v. Sanofi-Aventis (2006 FCA 229), the Court concluded that any infringement by patients would not be sufficient to find that Pharmascience’s allegation of non-infringement is unjustified, even though it is highly probable that patients who suffer from proteinuria and not from hypertension will use Pharmascience’s product. The evidence does not support Aventis' allegation that the contents of Pharmascience's product monographs would induce or procure patients to infringe its patent. Aventis did not provide evidence explaining how anyone would conclude from the references that ramipril should be employed with a calcium antagonist to treat proteinuria.
3. Novozymes v. Genecor International et al., August 14, 2006 FCTD (Hughes J.) Conflict Proceeding/Section 43 Patent Act, R.S.C. 1985/Consent Judgment
This action arose out of proceedings respecting conflicting applications for patents filed before October 1, 1989. Section 43 of the Patent Act, R.S.C. 1985, c. P-4 pertains to applications filed before October 1, 1989 and provides that where two ore more applications are pending, the Commissioner of Patents may declare them to be “in conflict” if they appear to relate to the same invention. In this action, ten claims were the subject of a conflict, and five parties had filed applications for a patent. The Commissioner awarded the claims to the defendant (Genecor). The plaintiff challenged the award, and asked that it be awarded claims 1 to 10. The plaintiff and defendant now seek a consent judgment that confirms the Commissioner's award of claims to the defendant and precludes the defendant from seeking other claims in the application.
Held: Consent judgment granted, but the Court refused to award the 10 substituted claims to the plaintiff for two reasons: 1) the plaintiff did not, in its prayer for relief in the Statement of Claim, seek such claims; 2) there is no evidence before the Court that could lead to the conclusion that it would be proper to award such claims to the plaintiff. While the Court has jurisdiction to award such substituted claims, it should only do so where a proper evidentiary foundation is provided. Mere consent of the parties is not enough.
4. Procter & Gamble et al. v. The Commissioner of Patents, August 15, 2006 FCTD (Barnes J.) Judicial Review/Correct Recorded Issue Date/Obligations of Commissioner/Sections 4(2), 8 and 43 of Patent Act/Formalities of Issuing Process/Clerical Errors/Notice of Compliance (Patented Medicines) Regulations
Application by Procter & Gamble ("P&G") for judicial review of the Commissioner's decision in which P&G's request to correct the reissue date for the Didrocal Patent ("Patent") was denied. P&G sought judicial relief in the form of an order quashing the Commissioner's decision and directing him to correct the issue date. In the alternative, P&G asked that the matter be referred back to the Commissioner for a redetermination in accordance with the requirements of s. 8 of the Act. The error in the recorded issue date of the Patent was noted during the context of litigation under the Regulations, wherein a generic pharmaceutical competitor attempted to enter the market with a similar medicinal product. P&G contends that its Patent legally reissued on June 18, 1996; however, the Commission contends that the issue date was June 11, 1996. The Commissioner denied P&G's request to change the reissue date of the patent on the basis that the change requested could not be made under s. 8 of the Act because there was no evidence that the recorded issue date was the result of a clerical error made in the mechanical process of writing or transcribing. The Commissioner further noted that he has no other authority under the Act to make such a change. P&G argued that if the recorded issue date for the Patent is demonstrably wrong, the Commissioner has a legal duty under s. 4(2) of the Act to correct that error, and if he declines to do so, he is subject to mandamus.
Held: Application granted. The Commissioner shall correct the records of the Patent Office pertaining to the Patent to reflect a date of re-issuance of June 18, 1996. The Commissioner has a legal duty under s. 43 of the Act to correct the reissue date. The Patent Certificate should have borne an issue date of June 18, 1996, that being its date of completion and delivery. The Commissioner erred in law in holding that delivery of a patent certificate to the patentee or to the public were not prerequisites to its lawful issuance and in refusing to correct that entry in the records of the Patent Office. The final and required step to issue a patent is its publication or distribution to the public. While June 11, 1996 was the intended date of issuance of the patent, the s. 43 formalities for issuing the patent were not completed until June 18, 1996. The failure of the Commissioner to fulfill the responsibilities established under s. 4(2) of the Act, which includes undertaking all things requisite for the granting and issuing of patents and by implication the accurate recording of the Patent Office records, rendered the Commissioner subject to mandamus. The Court further held that the Commissioner has discretionary authority under s. 8 of the Act to amend the Patent Office records. Section 8 of the Act should be read in light of current business and technological realities; it is no longer sufficient to suggest that an entry of incorrect data is not a clerical error because it does not arise from the mechanical process of writing or transcribing.
5. Solvay Pharma and Altana Pharma v. Apotex and The Minister of Health, September 15, 2006 FCTD (Teitelbaum J.) Production of Samples/Issue Estoppel/Patented Medicines (Notice of Compliance) Regulations/ Section 6(7)
Motion seeking an order compelling Apotex to provide the applicants with samples of pantoprazole sodium tablets. This motion arises within an application for an order prohibiting the Minister from issuing an NOC to Apotex. In previous proceedings, Apotex was ordered to provide the applicants with details on the formulation, but a motion for the production of samples was dismissed. No sample was provided to the Minister as part of Apotex's ANDS, which precluded the use of s. 6(7) of the Regulations. Relying on AB Hassel v. Apotex 2004 FCA 255, the applicants argued that samples referred to in evidence could be compelled before cross-examination and that the Court has a discretionary power to compel production under its inherent jurisdiction. The applicants also argued that the rule in AB Hassel should be expanded to allow the Court to order production of samples even before affidavits are filed, as this would be the most expedient way of proceeding. The applicants also argued that issue estoppel should not apply because of the new evidence put forward in this motion, which distinguishes it from the previous motion for production of samples.
Held: Motion dismissed. Concerns of expediency, while important, cannot be used to change the nature of the proceedings and the scope of discovery in applications under the Regulations. Allowing orders for production of samples before affidavits are filed would change the scope of discovery significantly. Samples can only be compelled in two instances: 1) under s. 6(7) of the Regulations or 2) where evidence on testing of the samples has been filed with the Court. Motion also dismissed on the grounds that issue estoppel applies. The applicants’ submission on distinguishing the two motions was not convincing. Applying the doctrine of issue estoppel was not unjust because the applicants could still compel the samples at a later stage in the application if affidavits on the testing of samples are filed.
(b) Trade Marks
1. Maison Cousin v. Cousins Submarines, January 5, 2006 FCTD (Noël J.) Opposition Appeal/Confusion/Burden
Appeal from opposition decision that allowed in part the appellant’s opposition to the respondent’s application to register COUSINS for sandwiches, various beverages and restaurant services. The Registrar held that there was a likelihood of confusion with the appellant’s MAISON COUSIN marks only in regard to sandwiches. The appellant’s marks are used in association with various breads, pastries, deli items, desserts and sandwiches. Only the appellant was represented before the Court.
Held: Appeal dismissed. The Court held that the types of food sold by the parties (other than sandwiches) are completely different. “The same goes for the nature of the trade.” Maison Cousin’s wares are sold in convenience stores, grocery stores and shops, while Cousins Submarines’ wares are sold in restaurants. The Court also found that the degree of resemblance between the marks favoured Cousins Submarines, both visually and aurally because the opponent’s mark is composed of several words while the applicant’s mark is composed of a single word. As a further surrounding circumstance, the Court considered that the logos of each mark are very different. The Court said, “The average consumer would therefore not be fooled, regardless of the date considered.” Regarding burden, the Court stated that there is only one burden, i.e. the one on the applicant. The Registrar should have “avoided using the term ‘burden’ to describe the opponent’s obligation to present evidence and should have stuck to weighing the respective evidence of each party.”
2. Provigo Distribution v. Max Mara Fashion, April 28, 2006 FCTD (de Montigny J.) Opposition Appeal/Confusion
Appeal from opposition decision that refused Provigo’s application to register MAXI & CIE for services inherent to or incidental to the operation of retail department businesses, services inherent to or incidental to the operation of a computer centre and retail optical store and opticians’ and optometrists’ services. The Registrar held that the mark was confusing in respect of those services with the mark MAX & CO. registered for women’s clothing, footwear, accessories, bags, jewellery, clocks, eyewear, luggage, stationery articles, books and linens.
Held: Appeal allowed. Because the two marks are inherently weak, even small differences are sufficient to distinguish among them. The non-use of the opponent’s mark ought to be a factor considered by the Board, whether or not the applicant can demonstrate use of its proposed mark. The mere fact that the parties’ wares and services overlap is not sufficient, in and of itself, to establish a likelihood of confusion. The evidence shows that the opponent offers high end women’s fashion for wealthy customers whereas the applicant’s stores target families looking for good prices. “This difference in the nature of the products sold obviously translates in the design, layout and appearance of the stores.” “Also of some relevance is the fact that all the stores associated with the mark MAXI & CIE are located in the province of Québec, while the MAX MARA shops are found throughout the world.” The fact that the applicant is seeking registration for services only, “and does not commercialize any products under that banner”, clearly reduces the possibility of confusion with the wares of the opponent. The Board should have considered the fact that the opponent did not attempt to show any evidence of actual confusion. The Board erred in not giving proper weight to the nature of the wares and businesses of both parties, to the channels of trade, and to the absence of any evidence of use of the opponent’s mark in Canada. The Court posed the question, “How could the person susceptible to purchase the sophisticated and pricy wares of the [opponent] be misled by the use of the mark MAXI & CIE on a warehouse type of store and induced to think that such wares could be mixed with low end, inexpensive mass consumption goods such as kitchenware, books, compact discs and cosmetics, all of this in what is essentially a grocery store?” (An appeal has been filed.)
3. Ratiopharm v. Laboratoires Riva, July 18, 2006 FCTD (Harrington J.) Infringement/ Opinion Evidence from Linguistics Professors/ Standing of Licensee to Sue
Action for trade mark infringement. The plaintiff claimed ownership of the mark CALMYLIN for cough syrup; the defendant is using DAMYLIN for cough syrup.
Held: The Court held that neither mark was inherently distinctive. There was evidence from linguistics professors that the suffix “YLIN” is fairly common in the pharmaceutical industry and that CALM suggests that one will be in a state of repose after taking the medicine whereas DAM has no pharmaceutical connotation. (The Court treated their opinion evidence concerning the likelihood of confusion with caution but found their different approaches helpful.) Whether or not the defendant intended to confuse is not relevant in an infringement action. Both parties’ wares are sold only from behind the counter in pharmacies. The Court concluded that on a balance of probabilities there is not a likelihood of confusion in the mind of the average consumer, even if hurried, because CALMYLIN and DAMYLIN do not look the same and do not sound the same (bearing in mind that YLIN is a common suffix in the trade) and CALMYLIN is not a strong mark.
The defendant argued that the plaintiff did not have standing to sue since the plaintiff sold the registration to a related company prior to commencing this action. However, in a licence agreement that was subsequently signed, the new owner stated that it had granted the plaintiff the exclusive license to use CALMYLIN since the date of the assignment. The Court was satisfied that the license requirements of s. 50 had been met and that the action has the same effect as if instituted by the registered trade mark owner.
4. Cafe’ Do Brasil v. Walong Marketing, September 5, 2006 FCTD (Mactavish J.) Section 57 Expungement
Application to expunge the respondent’s registration for KIMBO & Design. The applicant, an Italian company, has sold food products in association with the mark KIMBO in Canada continuously since 1992 and obtained a Canadian registration for its mark in 1990. In 1993, it filed a new application to cover additional wares and received an Examiner’s objection based on the respondent’s intervening registration. The respondent’s registration was based on use since January 1995. During examination of its application, the respondent received an Examiner’s objection based on the applicant’s registration, which it dealt with by requesting the issuance of a s. 45 notice. The s.45 proceedings resulted in the expungement of the applicant’s registration, unbeknownst to the applicant (who apparently never received the s. 45 notice). The respondent did not appear before the Court.
Held: Application granted. The Court found that the applicant did not have express notice of the s. 45 proceedings, else it would have filed evidence of its ongoing use of its mark. The respondent was not entitled to secure its registration because at the time of the respondent’s first use there was a reasonable likelihood of confusion between the parties’ marks.
5. Community Credit Union v. Reg. TMs et al., September 19, 2006 FCTD (Mosley J.) Opposition Appeal/Section 30(b)/Interaction between Descriptiveness and Distinctiveness
Appeal from an opposition decision that refused an application to register COMMUNITY CREDIT UNION. The opposition succeeded on the basis of s. 30(b) and non-distinctiveness. New evidence was filed with respect to the s. 30(b) ground.
Held: Appeal dismissed.
Section 30(b): the new evidence showed advertisements from before the claimed date of first use that contain the words Community Credit Union, but as a means of self-identification, not as a trade mark. The Court found that this new evidence merely supplemented that which was before the Board and would not have materially affected the Board’s findings.
The appellant submitted that the Registrar erred in failing to address the s. 12(1)(b) ground of opposition, saying that it was instrumental to any determination of non-distinctiveness. The appellant submitted that the Registrar went beyond the definition of distinctiveness to include very generic marks as non-distinctive marks. The Court found that the Registrar appropriately considered the distinctiveness ground of opposition as distinct from the descriptiveness ground of opposition and reasonably concluded that it was not necessary to deal with the descriptiveness ground of opposition because the application had already been refused on two other grounds. The Court indicated that in any event, the mark is clearly descriptive.
The Registrar’s decision re distinctiveness was correct.
(c) Practice
1. James W. Halford and Vale Farms v. Seed Hawk et al., May 8, 2006 FCA (Sharlow J.A.) Stay of an Order that is not Under Appeal/Balance of Convenience/Security for Costs
Motion by Halford and Vale Farms (“Halford”) for a stay of a Federal Court order for an award of costs pending the disposition of an appeal and cross-appeal from the judgment. Motion by Seed Hawk et al. (“Seed Hawk”) for security for costs, in the event the stay is granted. The judgment under appeal dismissed Halford’s action against the respondents for infringement of a patent, dismissed a cross-appeal for a declaration that the patent was invalid, and awarded costs to the respondents. Seed Hawk opposed the stay on the ground that the Court of Appeal does not have jurisdiction to grant a stay of a Court order that is not under appeal. Seed Hawk’s alternative argument was that the motion lacked merit.
Held: Motion for a stay of the award of costs granted with conditions. A motion to stay the execution of the award of costs is properly within the Court’s jurisdiction. The Court held that the termination of one’s business has been recognized as irreparable harm at law, and that on a balance of probabilities, irreparable harm would result if the stay were not granted. The third part of the test is a balance of the probable harm to each party. The Court concluded that the balance of convenience favoured granting the stay because the risk that Seed Hawk would be unable to collect its award would be no greater if the stay were allowed. With respect to Seed Hawk’s motion for security, the Court found that this represented a condition that would be practically impossible for Halford to fulfill. However, the Court attached a number of conditions to the stay in order to prevent Halford from aggravating Seed Hawk’s chances of collecting on its costs award.
2. Apotex v. Merck et al., May 25, 2006 FCA (Evans J.A.) Injunction/Infringement Interlocutory Stay/Compensation
Motion by Apotex to stay an order, pending appeal, enjoining it against future infringement of Merck's patent. Apotex argued it would suffer irreparable based on: (1) it would have no recourse in law to recoup financial losses suffered due to the injunction; (2) due to the 2007 expiration of the patent, removing the drug from the market only to re-instate it would cause confusion and harm Apotex’ reputation and market position; (3) there would be irreparable harm to pharmacies in the form of a shortage of the drug. In terms of balance of convenience, Apotex submitted that the removal of its generic drug from the market would have detrimental effects on public health. Merck argued that the irreparable financial loss to Apotex that would occur in the event that Apotex’ appeal is successful was not an issue because the respondents were willing to offer an undertaking in damages to indemnify Apotex against this possibility.
Held: Motion denied. The Court held that the only valid argument presented by Apotex was that it would not have a legal claim to losses suffered during the injunction. However, the argument was made moot by the undertaking offered by Merck to compensate any damages suffered by Apotex during the injunction.
3. Voltige v. Cirque X, June 2, 2006 FCTD (Phelan J.) Motion to Strike/Federal Court Rule 81(1) and 82/Affidavit by Employee of Law Firm
Motion by the defendant to strike all or parts of three affidavits tendered on behalf of the plaintiff. The defendant claims that the Scott Affidavit is contrary to r. 82 since it was prepared by a trade mark agent working in the plaintiff's counsel's firm. The defendant also claims that portions of the Nowak Affidavit offend r. 81(1) because they do not contain the statement that the deponent was informed and believed nor do they disclose the grounds for the belief. The defendant further claims that the copy of the brochure to which the deponent refers in the Patenaude Affidavit should be struck since it was not originally attached to the affidavit as an exhibit.
Held: Motion allowed in part. In Cross-Canada Auto Body Supply (Windsor) Ltd. v. Hyundai Auto Canada, [2006] F.C.J. No 539 (QL); 2006 FCA 133 the Court of Appeal held that the use of affidavits sworn by employees of a law firm may be accepted in limited circumstances. However, where there is opinion evidence from the law firm employee on the very issue in dispute – the confusion between the two marks – it is not acceptable to submit evidence from that source. In the present case, paragraphs 11 and 12 of the Scott Affidavit fall within this objectionable evidence and are thus struck. With respect to the Nowak Affidavit, the absence of the words "I am informed by X and do verily believe …" is not fatal to the admissibility of the hearsay evidence disclosed in the affidavit. However, a reverse inference must be drawn from the failure of the plaintiff to provide first-hand evidence on the issue of confusion. Therefore, the motion to strike portions of the Nowak Affidavit, subject to the reverse inference, is dismissed. With respect to the Patenaude Affidavit, the brochure was contained in one of the defendant's affidavits so the defendant had the document and must have known to what the deponent was referring. Thus, the motion to strike all or part of the Patenaude Affidavit is dismissed.
4. FPTV et al. v. New Casa Abril et al., July 6, 2006 (von Finckenstein J.) Contempt
Motion for contempt brought by the plaintiffs. The plaintiffs had obtained an interlocutory injunction against the defendants from performing publicly, showing, broadcasting or exhibiting any Superliga matches without authorization or consent of the plaintiffs. The plaintiffs later sought an order amending the title of the proceedings to correct the name of the defendant and also to include the defendant’s restaurant. Subsequently, another interlocutory injunction was obtained.
Held: Motion dismissed. In cases of contempt, the Court requires strict compliance in terms of establishing all elements constituting contempt. A person cannot be held in contempt unless he has knowledge of the order. In the case at bar, the defendant was not personally served with the first order as it did not display his proper name nor did it display the name of the defendant’s restaurant. The plaintiffs did not establish beyond a reasonable doubt that the terms of the existing orders had been breached by the defendants.
5. Pfizer Canada et al. v. The Minister of Health and Ranbaxy Labs, July 27, 2006, FCTD (Lemieux J.) Striking out Affidavit/Leave to File a Reply Affidavit/Federal Court Rule 312/ NOC Proceeding
Appeal by Ranbaxy from Milczynski P.'s order striking out paragraphs of one of Ranbaxy's experts, and granting Pfizer leave to serve and file a reply affidavit. Ranbaxy argued that the paragraphs struck from the affidavit, which dealt with foreign and Canadian file histories of the patent at issue, did not go to patent construction, but rather were admissions supporting a factual assertion about the drug at issue in the patent. Ranbaxy further argued that Milczynski P. applied the wrong test in granting Pfizer leave to file a reply affidavit.
Held: Appeal dismissed. As set out by the Supreme Court in Free World Trust, and the Exchequer Court in Lovell Manufacturing, file histories are not relevant in construing patent claims in Canada. The parts of the Ranbaxy expert affidavit that were struck, were parts which Ranbaxy was seeking to rely on to help construe the claims. This did not fit the exception Binnie J. mentioned in Free World Trust, where a file history may be admitted if it were "for a purpose other than defining the scope of the grant of the monopoly". Regarding the leave to file a reply affidavit, Milczynski P. applied the proper test, and was within her discretion. The central feature of Milczynski P.'s decision was that Pfizer's reply affidavit responded to new issues raised by Ranbaxy's evidence and/or it provided the Court with information that would be of assistance in its final determination of the application.
6. Pfizer Canada et al. v. The Minister of Health and Novopharm, July 28, 2006, FCTD (Lafrenière P.) Extended Memorandum of Fact and Law/Federal Court Rule 70(4)/ NOC Proceeding
Motion by Pfizer seeking leave to allow each party to file a memorandum of law and fact up to 45 pages in length. Novopharm argued that Pfizer had filed no evidence to support the motion.
Held: Motion granted. Lafrenière P. agreed that Pfizer's affidavit evidence in support of the motion was "somewhat wanting". Lafrenière P. could not assess whether Pfizer's memorandum would be of assistance to the Court, because a draft copy was not produced for review, as is usually a matter of good practice on such a motion. In spite of these facts, the overriding factor to consider is whether the lengthier memorandum will better allow the judge to make a proper determination of the application on its merits. Based on Lafrenière P.'s review of the NOA, the Amended Notice of Application, and the affidavits on record, 30 pages would not suffice to enable counsel to present the facts and argument in a manner that is cohesive and accessible to the Court.
7. Pfizer Canada v. The Minister of Health, Apotex and Sanofi-Aventis Deutschland, August 17, 2006 FCTD (Teitelbaum J.) Leave to File Reply Affidavit/ Federal Court Rule 312/NOC Proceeding
Motion by Pfizer requesting the Court set aside Prothonotary Tabib's decision declining Pfizer leave to file a reply affidavit pursuant to r. 312. The motion arises within an application under the Regulations wherein Pfizer seeks an order prohibiting the Minister from issuing an NOC to Apotex in respect of its proposed Apo-Quinapril. Pfizer argues that the Prothonotary's Order was clearly wrong because the Prothonotary erred in importing a fourth requirement into the three-part test for granting leave to file reply evidence. Pfizer submits that Eli Lilly and Co. v. Apotex Inc. (1997) 76 C.P.R. (3d) 15 established a three-part test for granting leave to file reply evidence. Leave is granted where the evidence would: a) serve the interests of justice; b) assist the Court in making its final determination; and c) not cause substantial or serious prejudice to the respondents. Pfizer argued that the "available in chief" requirement set out in the later case of Atlantic Engraving Ltd. v. Lapointe Rosenstein 2002 FCA 503, which stipulates that the evidence sought to be filed must not have been available at an earlier date, should not be applicable to NOC proceedings where the issues are often only made clear to the applicant after the respondent has filed its evidence. Pfizer also argued that cross-examination is no substitute for written reply evidence.
Held: Motion denied. The Prothonotary did not misconstrue the test for granting leave to file additional evidence, nor did she err in her application of the test. The FCA's decision of Atlantic Engraving dictates that the availability of evidence is an additional factor that must be considered as part of the test for granting leave to file additional affidavit material. The comments in Atlantic Engraving with respect to the rules governing the filing of additional affidavits apply to all motions brought under r. 312, including NOC proceedings. Considering the availability of evidence plays an important role in safeguarding the legislative intent that NOC proceedings should be summary in nature and proceeded with expeditiously. Rule 312 should not be used to allow a party to split its case or to delay putting its best case forward. A party seeking to adduce evidence may need to show that its evidence was not available at some other date, such as at the time of filing its first affidavit evidence, in order to satisfy the Court that it is not attempting to split its case or is otherwise failing to put its best case forward at the first opportunity.
8. Genencor v. Commissioner of Patents and Novozymes, August 24, 2006 FCTD (Pinard J.) Judicial Review/Appeal Rights of Re-Examination Requester/Federal Court Rule 338(1)
Motion by Genencor to set aside an order of a Prothonotary finding that the re-examination requesting party, Novozymes, could be a respondent to an appeal from a re-examination request decision, thus granting the requester appeal rights under r. 338(1).
Held: Motion granted and the order set aside. The involvement of the requester is limited to filing relevant prior art and explaining how a substantial new question of patentability is raised. The Re-Examination Board will then decide whether a substantial new question of patentability is indeed raised and if so, a re-examination proceeding will commence. There is no mention in the Patent Act that the requester has the right to appeal this decision or to file further communications with the Board. Moreover, if the re-examination proceeding commences pursuant to s. 48(3), the Patent Act provides that the only parties to the proceeding are the patentee and the Re-Examination Board. As such the Prothonotary erred in law in granting the requester statutory appeal rights under r. 338(1) as they are not a party in "the first instance", namely the re-examination proceeding.
9. Apotex v. Abbott Laboratories et al., September 5, 2006 FCA (Noël, Sexton, Evans JJ.A.) Judicial Review/Exclusion of Expert Evidence/New Evidence
Appeals from two decisions.
1) Appeal by Apotex from a decision to disqualify an expert testimony. The Court held that the expert's testimony gave rise to a risk of prejudice to Abbott since they had previously hired the expert and disclosed their legal strategy to him. Apotex argued that the Judge made a palpable and overriding error in failing to find that Abbott had retained the expert for an improper purpose, namely to eliminate him from the pool of experts available to Apotex.
2) Appeal from a decision upholding a Prothonotary's decision denying Apotex leave to file additional evidence to replace the aforementioned disqualified expert testimony. The Prothonotary denied the relief since Apotex was attempting to obtain the same relief as in the proceeding referred to above and held that Apotex was making an "end run" around the appeal process.
Held: 1) Appeal dismissed. Apotex made a serious allegation that was not supported by clear and compelling evidence.
2) Appeal dismissed. The Prothonotary was entitled to exercise such discretion and the Judge committed no error in declining to interfere. Although Apotex later conceded to not seek to obtain leave to file additional expert evidence in the above proceeding, at the time the Prothonotary made his decision the concession had not been made.
II. OPPOSITION COURT DECISIONS
1. Logitech Electronics v. Telemac, March 3, 2006 (Tremblay) Confusion
Proposed use application for TELEMAC for computer software used in programming, distributing, tracking, accounting, renting and maintaining cellular telephones and pagers …cellular telephone service etc. Opposition based, inter alia, on s. 12(1)(d) due to confusion with TELEMAX registered by the opponent for telephones.
Held: Application refused. The applicant does not provide its services to consumers but sells them to network service providers, but the applicant’s statement of services is not so restricted. A consumer is likely to associate TELEMAC to the cell phone itself rather than to the software that is loaded into the telephone. (An appeal has been filed.)
2. Jurak Holdings v. Matol Biotech, March 3, 2006 (Tremblay) Section 12(1)(a)/ Surname Connotation
Use-based application for JURAK for minerals and vitamins preparations, food supplements, non-alcoholic beverages, cosmetics and skin care products; multi-level marketing; manufacture, wholesale and direct selling and distribution of the aforesaid wares. Opposition based, inter alia, on s. 12(1)(a).
Held: Opposition rejected. Evidence of 25 telephone listings in Canada for individuals with the surname JURAK does not show that JURAK is a fairly common surname but rather that it is a relatively rare surname in Canada. The Registrar concluded that more Canadians would be likely to respond to JURAK as an invented word than as a surname.
3. Kraft Foods v. Weetabix of Canada, March 22, 2006 (Martin) Confusion/Labeling Errors/Procedure
Proposed use application for SHREDZ for breakfast cereal. Opposition based, inter alia, on s. 12(1)(d) due to confusion with SHREDDIES registered by the opponent for cereal foods.
Held: Application refused. Confusion is likely. No other party appears to have adopted a mark for cereal that is similar to the opponent’s mark and all of the s. 6(5) factors favour the opponent. The opponent gave evidence concerning a licensing arrangement and 7 of the 9 packages provided as exhibits had labeling consistent with that arrangement; the Registrar took the view that the contrary labeling was simply a mistake that should not be held against the opponent. Because the opponent only filed its case list one day before the hearing, the applicant was given the opportunity to make additional submissions in writing respecting those cases. (An appeal has been filed.)
4. General Nutrition Investment v. James Kiss, March 24, 2006 (Tremblay) Confusion
Proposed use application for BETTER NUTRITION CENTRE & Design for vitamins, minerals, herbal supplements… operation of a retail store and mail order services featuring such wares. BETTER NUTRITION CENTRE disclaimed. Opposition based, inter alia, on s. 12(1)(d) due to confusion with GENERAL NUTRITION CENTER registered by the opponent for similar wares and services.
Held: Opposition rejected. The opponent’s evidence failed to show that the opponent’s mark had been used in Canada within the meaning of s. 4 at any time in association with the registered wares and services. Section 6(5)(a) and (b) favoured the applicant.
5. Unilever Canada v. Sunrider, March 25, 2006 (Bradbury) Confusion
Use-based application for SUNSMILE & Design for dental products, a variety of household cleansers, and antiperspirants and deodorants. Opposition based, inter alia, on s. 12(1)(d) due to confusion with SUNLIGHT registered for household cleaning products.
Held: Application refused only with respect to household cleansers. The Opponent evidenced lengthy and extensive use of SUNLIGHT with laundry detergent. However the differences between the marks combined with the differences between detergent and personal care products resulted in the opposition being rejected with respect to the dental products, antiperspirants and deodorants. (An appeal has been filed.)
6. Procter & Gamble v. SmithKline Beecham, March 27, 2006 (Bradbury) Distinctiveness/Descriptiveness
Proposed use application for BLANCHISSANT MULTI-ACTION for dentifrices, mouth washes and breath fresheners. BLANCHISSANT disclaimed. Opposition based, inter alia, on distinctiveness and descriptiveness.
Held: Application refused on the basis of the distinctiveness ground only. The mark is not inherently distinctive as it is a combination of descriptive words. It is not capable of distinguishing the applicant’s wares from the oral care products of others that also produce whitening results by multiple means. The mark is not clearly descriptive because the word “multi-action” is somewhat vague and further information is required in order to understand the various ways employed by the wares to achieve whitening. (An appeal has been filed.)
7. Parmalat Food v. Sun World, March 28, 2006 (Herzig) Confusion/Section 30(a)
Use-based application for BLACK DIAMOND for plums. Opposition based, inter alia, on s. 12(1)(d) due to confusion with BLACK DIAMOND registered by the opponent for cheese and s. 30(a).
Held: Application refused on both grounds. Re confusion: the Opponent’s mark has been extensively used and promoted, and its BLACK DIAMOND cheese is often advertised in produce areas of grocery stores because the opponent views its cheese products as a complement to produce. Re s. 30(a): the applicant did not evidence its date of first use but the opponent met its light evidential burden through evidence that its affiants had never encountered the applicant’s BLACK DIAMOND plums. The Registrar noted that it would have been a simple and prudent matter for the applicant to dispel any doubts concerning its use.
8. The Ontario Educational Communication Authority v. Videotron, March 28, 2006 (Carrière) Section 12(1)(e)/ Distinctiveness
Proposed use application for CANAL VOX for the production of television programming for broadcast or recording and community news and services programming via television. CANAL disclaimed. Opposition based on s. 12(1)(e) in view of the opponent’s official mark VOX and non-distinctiveness because it does not distinguish the applicant’s services from the television programming services performed under the opponent’s VOX mark.
Held: Application refused. The s. 12(1)(e) ground failed because the applicant’s mark is visually distinguishable from the official mark. The distinctiveness ground of opposition succeeded because the applicant’s mark comprises the opponent’s mark in its entirety with the addition of merely the suggestive word CANAL. Even though the applicant commenced use of its mark before the opponent commenced use of its mark, the Registrar found that the applicant had not discharged its legal burden with respect to the distinctiveness ground. (An appeal has been filed.)
9. 9017-7148 Quebec v. Cyberlogic Technologies, April 7, 2006 (Carrière) Distinctiveness/Request at Oral Hearing to Amend Statement of Opposition
Use-based application for CYBERLOGIC for computer software, namely, industrial automation and manufacturing process control and connectivity software for monitoring, diagnostics, communications, controlling and reporting. Opposition based, inter alia, on non-distinctiveness due to confusion with CYBERLOGIC used by the opponent with the services of a retail store and repair of computer equipment, the sale of software, rental of computer systems and the services of conception, installation and maintenance of computer networks and websites.
Held: Application refused. The opponent’s use did not predate that of the applicant but there is no evidence that the opponent adopted its mark in bad faith. The applicant did not evidence any use of its mark prior to the material date and did not satisfy its legal burden. A motion to amend the statement of opposition was made at the oral hearing but refused on the basis that the applicant would be prejudiced by the grant of such a motion at this late stage.
10. Power Budd v. Roger Beaudry, April 7, 2006 (Tremblay) Distinctiveness
Proposed use application for LAW PLUS for legal counsel related to commercial law, banking law, bankruptcy and solvency, etc. LAW disclaimed. Opposition based, inter alia, on non-distinctiveness due to confusion with LAW + STRATEGY used by the opponent for legal services, etc.
Held: Opposition rejected because both marks are inherently weak, the opponent’s mark has acquired limited distinctiveness and the word STRATEGY serves to differentiate the marks.
11. Omega v. Omega Engineering, April 24, 2006 (Carrière) Confusion
Use-based application for OMEGA for inter alia apparatus intended for science or industry namely clocks and timers. Opposition based, inter alia, on s. 12(1)(d) due to confusion with OMEGA & Design registered by the opponent for watches and certain technical and scientific apparatus.
Held: Application rejected with respect to clocks and timers because of the resemblance between the marks and the potential overlap in the channels of trade.
12. Aloette Cosmetics v. Medique Cosmetics, April 26, 2006 (Bradbury) Section 30(b)/Confusion
Use-based application for ALOEVITE for facial moisturizer. Opposition based, inter alia, on s. 30(b) and s. 12(1)(d) due to confusion with ALOETTE and ALOESPA registered by the opponent for cosmetics.
Held: Application refused based on s. 30(b) because the labels showed use of ALOEVITE as part of a combination mark (MEDIQUE ALOEVITE). The Registrar rejected the argument that the applicant’s initial use was merely token use or test marketing. The applicant established that it typically begins by selling its products at its test center and then moves on to wholesale, with the result that its “test” sales were in its ordinary course of trade. The use of non-professional labels at the beginning should not be held against the applicant. The s. 12(1)(d) ground failed because there was no evidence of the opponent’s marks having acquired any distinctiveness and it is difficult for any party to monopolize the prefix ALOE in this field given that it refers to a cosmetic ingredient.
13. GA Modefine v. Di Gio’, April 26, 2006 (Bradbury) Confusion/Section 50
Proposed use application for DI GIÒ for wedding dresses, formal dresses and accessories for wedding dresses. Opposition based, inter alia, on s. 16 due to confusion with GIO’ which is the subject of a prior application for various clothing items.
Held: Application refused because of the similarities in both the marks and their associated wares. The lack of cross-examination did not prevent the Hearing Officer from assessing whether the use shown by the opponent in association with toiletries accrued to its benefit pursuant to s. 50 – the Hearing Officer concluded that it did not.
14. Les Brasseurs du Nord v. Eau Boreale, May 4, 2006 (Tremblay) Confusion
Proposed use application for EAU BORÉALE for cosmetic products. Opposition based, inter alia, on s. 12(1)(d) due to confusion with the mark BOREALE registered for beer.
Held: Opposition rejected because of the differences between both the wares and the trades.
15. Novopharm and Apotex v. Hoffman-La Roche, May 5, 2006 (Herzig) Distinguishing Guise/Pharmaceutical Capsules/Section 30(h)/ Accurate Drawing/Identifying Specific Colour
Proposed use application for the Xenical Capsule Design for a certain pharmaceutical preparation and the provision of information to health care professionals relating to anti-obesity and lipid lowering agents. Opposition based, inter alia, on s. 38(2)(b) because the mark is a distinguishing guise and on s. 30(h) in that the application does not contain an accurate drawing and representation of the mark.
Held: Application refused on both grounds. Based on evidence that some patients open the capsule and pour the contents out for consumption, the mark is a distinguishing guise in that the capsule is a container for the wares, albeit an ingestible container. (The capsule does not qualify as a mode of wrapping or packaging wares as the medicine is generally packaged in blister packs and then placed in an outer paper box.) The s. 30(h) ground succeeded because the following description is unclear as to whether the mark consists of a shape together with the colour blue or the colour blue alone: “The mark consists of the colour blue applied to the whole visible surface of the capsule; the capsule shown in dotted outline does not form part of the mark.” The failure to file a colour patch also supported a conclusion that the applicant did not comply with s. 30(h) as blue is too broad a description. (A specimen capsule was attached to the application but specimens do not form part of an application.)
16. Kellogg v. Barbara’s Bakery, May 8, 2006 (Martin) Descriptiveness
Use-based application for SHREDDED OATS for cereals. OATS disclaimed. Opposition based, inter alia, on s. 12(1)(b).
Held: Application refused. Given the generic status of the term “shredded wheat” and based on the ordinary meaning of the words “shredded” and “oats”, the average consumer would assume that the applicant’s wares include oats that have been shredded.
17. Home Hardware Stores v. Canadian Tire, May 19, 2006 (Martin) Services Ancillary to the Sale of Wares/Descriptiveness
Use-based application for <<ARGENT>> CANADIAN TIRE for a program for the giving of cash bonuses to retail customers through the issuance and redemption of cash bonus coupons. Opposition based, inter alia, on s. 30(a) and s. 12(1)(b).
Held: Opposition rejected. S. 30(a): The fact that the public uses the expression L’ARGENT CANADIAN TIRE to describe the applicant’s discount coupons does not mean that the words cannot also function as a mark to identify the applicant’s discount coupon program. S. 12(1)(b): Since the mark is comprised of 1 French and 2 English words, it cannot be clearly descriptive or deceptively misdescriptive in the French or English language. The decision applied much of the reasoning from an earlier decision regarding the English version of this mark.
18. International Stars v. Diane Green, May 29, 2006 (Bradbury) Confusion
Proposed use application for NAKED ENERGY for clothing, bags, accessories, sporting goods, and the sales of department store-type merchandise over the Internet. Opposition based, inter alia, on s. 12(1)(d) due to confusion with ENERGIE Design registered by the opponent for clothing, bags and accessories.
Held: Application refused for the wares clothing, bags, and accessories and the services. There is a fair degree of resemblance between the marks; there is no evidence that ENERGY or ENERGIE is a common formative for marks in the clothing field. However the differences between sporting goods and the opponent’s wares make confusion unlikely with respect to those wares.
19. Sharks Clubs of Canada v. 2764296 Canada, May 30, 2006 (Herzig) Confusion
Use-based application for SHARX POOL BAR for t-shirts, pens, pencils, key chains and operation of lounges and sports bars which offer billiards, snooker and games of chance. POOL and BAR disclaimed. Opposition based, inter alia, on s. 12(1)(d) due to confusion with the mark SHARK CLUB BAR & GRILL registered for restaurant and bar services.
Held: Application refused. The applicant’s restaurant services are a minor part of its business and it chose SHARX as a reference to a “pool shark”, not the fish. Nevertheless, in the absence of evidence that SHARK is common to the restaurant industry, confusion is likely because of the high degree of resemblance between the marks and the overlap between the services.
20. Perks Coffee v. Blue Tree Hotels, June 5, 2006 (Bradbury) Confusion
Proposed use application for STANLEY PERKS AT BAYSHORE for salad dressings, marinades, chutneys, focaccia dips, the operation of a bar, café and restaurant, and the provision of catering services. Opposition based, inter alia, on s. 12(1)(d) due to confusion with PERKS registered by the opponent for coffee, baked goods, the operation of an outlet dealing in the sale of baked goods and restaurant services.
Held: Opposition rejected because the applicant’s mark as a whole does not resemble the opponent’s mark to any significant degree, bearing in mind that the word “perks” is suggestive of coffee.
21. Canadian Tire v. Automobility Distribution, June 5, 2006 (Bradbury) Confusion
Proposed use application for PREDATOR for vehicle security systems, automobile audio and video products, and the sale and servicing of the foregoing. Opposition based, inter alia, on s. 12(1)(d) due to confusion with PREDATOR registered by the opponent for tires.
Held: Application refused because both parties use the identical trade-mark in the after-market automotive field. There is no evidence that PREDATOR is a word that has been commonly adopted in the automotive industry. The applicant argued unsuccessfully that confusion is not likely in part because the opponent typically uses more than 1 mark on its tires, e.g. it will use both CANADIAN TIRE and PREDATOR which will serve to distinguish the wares from those of the applicant. The opponent’s stores sell the same wares and services as covered by the application, albeit not in association with PREDATOR.
22. Sara Lee Global Finance v. Abderahamane Magagi, June 19, 2006 (Carrière) Confusion/Defective Affidavit
Proposed use application for MAGIC THE CHAMPION MAGIQUE LE CHAMPION & Design for a variety of wares including clothing. Opposition based, inter alia, on s. 12(1)(d) due to a likelihood of confusion with CHAMPION Design registered for clothing.
Held: Opposition rejected because the dominant portion of the applicant’s mark is a cartoon character and the minor degree of resemblance between the parties’ marks outweighs the similarities in the wares and trade. The affidavit filed by the Opponent was not signed by a person entitled to receive the oath of the affiant. The Hearing Officer raised this at the oral hearing and requested written submissions from the parties on the issue of whether the Registrar can raise such a deficiency on his own and the consequences of such a deficiency. The affidavit was disregarded on the basis of this deficiency.
23. Alberto-Culver v. VOV Cosmetics, June 21, 2006 (Martin) Confusion
Proposed use application for VOV Design for perfume, lipsticks, etc. Opposition based, inter alia, on s. 12(1)(d) due to a likelihood of confusion with VO5 registered for cosmetic and toiletry preparations.
Held: Application refused in view of the resemblance between the wares, trades and marks of the parties and the reputation associated with the opponent’s mark. (The applicant did not file any evidence.)
III. SECTION 45 DECISIONS
1. Robic v. Base London, March 3, 2006 (Tremblay) Deviation from Registered Mark/ Proving Use Pursuant to Section 4
BASE & Design registered for boots, shoes and slippers.
Held: Registration restricted to shoes, as they were the only wares shown to be in use. The addition of the word LONDON to the mark is a difference that is so unimportant that the public will not be mislead. Evidence of the mark appearing on marketing items such as display units was not held to be use since there was no evidence that the marketing items were used in close proximity to the wares on display for sale such that they created sufficient notice of association between the shoes and the mark at the time of transfer.
2. Shapiro Cohen v. Samuel Ejnesman, March 9, 2006 (Savard) Use by Whom/ Business Name
ECOLITE registered for lamps.
Held: Registration maintained. Use of the mark by a business called Ecolite is use by the registrant since he has evidenced that he is the proprietor of a small business operating under the registered business name Ecolite.
3. 88766 Canada v. Boyd Coffee, March 14, 2006 (Carrière) Use by Whom/Trade Name/Use with Each Ware
ITALIA D’ORO registered for syrups and flavoring syrup.
Held: Registration maintained. The invoices produced refer to “Boyds”, not Boyds Coffee. However the affiant uses the defined term “Boyds” to refer to the registrant and says that the invoices show sales of Boyds’ syrup. As the invoices bear the registrant’s address, the Registrar accepted that Boyds is simply a trade name used by the registrant. Further, the Registrar held that the sales of chocolate syrup maintained the wares “syrup”, while sales of cherry syrup bearing the inscription “syrup artificially flavoured” maintained the wares “flavoured [sic] syrup”.
4. Effigi v. Big Feats Entertainment, March 17, 2006 (Savard) Inferences re Trade Name
WISHBONE registered for, inter alia, jewelry; clothing namely T-shirts; and plush toys.
Held: Registration restricted to wares shown to be sold during the relevant time period, namely jewelry; clothing namely T-shirts; and plush toys. The invoices filed were issued by Hit Entertainment and the registrant’s agent argued that it could be inferred that this was a distributor of the registrant. However, the affiant attested that the registrant sold its wares to distributors and individuals in Canada and the invoices bore a U.S. address, namely the registrant’s address. The Registrar therefore concluded that a more reasonable inference was that Hit Entertainment is probably a trade name of the registrant. In support of this inference, the Registrar noted that there is nothing in the evidence that clearly indicates that Hit Entertainment is a separate legal entity and found that the affiant’s statement that the invoices are in relation to wares sold directly to customers in Canada should be interpreted as meaning sold directly by the registrant.
5. Sara Lee v. Mark Naylor, d/b/a Classic Cowboys, March 17, 2006 (Savard) Use in Accordance with Section 4
EVOLUTION SPORTSWEAR registered for various clothing.
Held: Registration expunged. Although clothing was sold during the relevant time period, the Registrar could not conclude that the mark was associated with the wares at the time of transfer in a manner satisfying s. 4. The mark does not appear on the wares and there is no evidence that it appears on their packaging. Instead, the mark appears 1) on the top part of invoices, 2) on signage at kiosks and 3) at the top of the registrant’s website. The first is not s. 4 use since the words are not so associated with any of the items listed in the invoice so as to provide the necessary association, the appearance on the invoices is more a use of a trade name or a trade mark for the registrant’s business. The second would qualify as use under s. 4, but it is not clear that these kiosks operated during the relevant period. Regarding the third, it is not clear that the website was in operation during the relevant period and, in any event, such would not provide the required association at the time of transfer of the wares.
6. Sara Lee v. Mark Naylor, d/b/a Classic Cowboys, March 17, 2006 (Savard) Use by Whom/Trade Name/Use of Mark Per Se/C.O.D. Invoices
EVOLUTION registered for various clothing.
Held: Registration restricted to those listed in invoices. The registrant attested that he carries on business under the name Classic Cowboys Design and so the Registrar accepted that invoices bearing CLASSIC COWBOYS DESIGNS at the top were the registrant’s invoices, even though the invoices did not bear the registrant’s address. Although EVOLUTION SPORTSWEAR also appeared at the top of the invoices, the Registrar accepted that this was merely another trade name and/or trade mark of the registrant.
The Registrar held that the registrant’s clothing did not show use of EVOLUTION per se but showed use of an overall design mark having a combination of elements. However, the mark did appear in the body of certain invoices during the relevant time period. The requesting party’s argument that there was no evidence that the invoices accompanied the wares was rejected by the Registrar because the invoices were C.O.D.
7. Smart & Biggar v. Highwood Resource, April 7, 2006 (Tremblay) Identity of Wares/Edited Invoices
MAXPELL registered for zeolite, for use as a pellet binding agent, absorbent, fertilizer additive.
Held: Registration amended to delete fertilizer additive. The registrant provided evidence for use in association with zeolite, for use as a pellet binding agent, absorbent, and feed additive, but the Registrar found that “there is no common ground between a feed additive application and a ‘fertilizer additive’ application.”
The registrant removed the pricing information from the invoices that it filed but that does not mean that the sales were not made for value.
8. Riches, McKenzie & Herbert v. Gulliver’s, The Travel Accessory Store, April 13, 2006 (Savard) Effect of Discrepancy in Affidavit/Incidental Services
GULLIVER’S & Design registered for a number of wares and services.
Held: Registration restricted to those wares/services shown to have been sold/performed during the relevant period. A discrepancy between the date of first use in the registration and in a s. 45 affidavit will not result in the s. 45 affidavit being considered unreliable. The requesting party argued that applying a label beari
