TRADE MARKS |
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Novopharm Ltd. v. Bayer Inc.
A-770-99
Strayer J.A.
14/11/00
3 pp.
Appeal from Trial Judge's decision setting aside Registrar of Trade-marks' dismissal of Novopharm's opposition to registration of Bayer's trade mark for drug nifedipine, consisting of application of colour dusty rose to whole of round tablet--In advertisement, word description of proposed trade mark referring to it as colour dusty rose, while drawing depicting it as blue--Registrar considering error overcome by fact opponent not confused by mistake--Trial Judge concluded regulations for advertising requiring strict compliance, mistakes cannot be waived by some test of probability of confusion--Noted public interest in accuracy of registration process--Holding Registrar wrongly held: (1) deficiencies in advertising of proposed trade mark not invalidating application; (2) mark distinctive--Appeal dismissed--Decisions of Registrar, whether of fact, law, discretion, within area of expertise, to be reviewed on standard of reasonableness simpliciter--Where additional evidence adduced in Trial Division that would materially have affected Registrar's findings of fact, or exercise of discretion, Trial Division judge must come to own conclusion as to correctness of Registrar's decision: Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 (C.A.)--No new evidence concerning first issue before Trial Judge--Registrar's decision unreasonable as treating accuracy of advertising of trade mark application as matter of interest only to parties to opposition proceeding--Registrar erred in approving application notwithstanding advertisement of proposed mark misleading or confusing--On issue of distinctiveness, substantial relevant evidence before trial judge that was not before Registrar--As distinctiveness essentially issue of fact, open to trial judge to reach own conclusion thereon--In absence of palpable, overriding error in Trial Judge's findings, Court should not interfere--No such error.