TRADE MARKS |
Expungement |
Kelendji v. Diplomat Fullhalter Gesellschaft Kurz & Rauchle GMBH & Co. KG
A-282-01
2002 FCA 480, Décary J.A.
2/12/02
3 pp.
Application to expunge from register trade-mark "diplomat" registered by respondent on February 28, 1991-- Appellant relied on Trade-marks Act, ss.17(2), 18(1)(a)-- Motions Judge dismissed application to expunge on ground made after five-year deadline specified in s. 17(2)--No appeal as to that conclusion--However, Motions Judge did not deal with ground for expungement mentioned in s. 18(1)(a), namely that registration invalid as mark not registrable on date of registration--This ground for expungement not subject to five-year prescription period laid down in s. 17(2) and Motions Judge had duty to consider it--Motions Judge's decision reversed and matter referred back to Trial Division for rehearing--Appeal allowed--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 17, 18.