TRADE MARKS |
College of Chiropodists of Ontario v. Canada Podiatric Medical Association
T-1230-02
2004 FC 1774, Heneghan J.
22/12/04
33 pp.
Judicial review of Registrar of Trade-marks' decision to publish mark "Podiatrist" as official mark pursuant to Trade-marks Act, s. 9(1)(n)(iii)--Respondent, private professional association incorporated as non-profit corporation, presenting itself as public authority entitled to protection available under Act, s. 9(1)(n)(iii), which provides no person shall adopt trade-mark if mark likely to be mistaken for one adopted, used by public authority as official mark--Standard of review correctness as new evidence not before Registrar now before Court--Whether respondent "public authority" within meaning of Act--Suggestion regulatory functions exercised by some of respondent's members giving regulatory function to respondent itself without foundation--Membership in provincial podiatry association that may, may not exercise regulatory authority not leading to conclusion respondent public authority--Respondent merely discharging role of professional association promoting, lobbying for interests of members, without being subject to government control-- Elements of "government control" characterizing public authority discussed in Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, [2003] 1 F.C. 331 (C.A.)--Defining characteristics government control, public benefit--Here, no evidence respondent public authority--No evidence Government of Canada can review, intervene in operations of respondent--Respondent's assets not available to public in event of liquidation, its affairs not subject to statutory control, regulation--Respondent not entitled to protection of Act--Applicant directly affected by publication of official mark "Podiatrist" because regulatory body in Ontario for professionals identified in Chiropody Act, 1991-- Applicant thus having standing to bring application--As for timeliness, application filed 11 months after publication of mark but within 30 days of applicant becoming aware of it-- Court exercising discretion to extend time for commencing application as applicant provided adequate explanation for delay--Little, if any, consultation by respondent re: decision to request official mark--Applicant demonstrating due diligence, not delaying in pursuing remedy--Prejudice to applicant if decision stands as it, not respondent, regulates podiatrists--Applicant advancing "seriously arguable case" Act, s. 9(1)(n)(iii) not to be given expansive interpretation in recognition of public authority--Application allowed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 9(1)(n)(iii) (as am. by S.C. 1993, c. 15, s. 58)--Chiropody Act, 1991, S.O. 1991, c. 20.