TRADE MARKS |
Registration |
Swabey Ogilvy Renault v. Golden Brand Clothing (Canada) Ltd.
T-2387-00
2002 FCT 458, Martineau J.
23/4/02
11 pp.
Appeal from decision respondent's trade-mark in use in Canada in association with men's suits and pants, and men's shirts and jackets during relevant period--Hearing officer deleted balance of wares listed in registration--Respondent owner of trade-mark "Le Collezioni (Tradizioni) di Successo", registered in 1977 for use in association with men's suits, jackets, vests and pants; and men's shirts, ties, socks, coats and jackets--Trade-marks Act, s. 45 permitting Registrar to require registered owner of trade-mark to furnish affidavit with respect to each of wares specified in registration showing whether trade-mark in use in Canada during three-year period immediately preceding date of notice--Whether respondent provided evidence of use of subject mark in association with men's suits, pants, shirts, jackets during relevant period-- Appeal dismissed--To demonstrate use, maintain trade-mark on register, party must show assertions of fact showing use as opposed to mere assertions of use, but threshold for use not "stringent"--S. 2 defining "use" as any use deemed by s. 4 to be use in association with wares or services--S. 4 deeming trade-mark used in association with wares if marked on wares themselves or on packages or so associated with wares that notice of association then given to person to whom property or possession transferred--Practical test comparison of trade-mark as registered with trade-mark as used to determine whether differences so unimportant that unaware purchaser likely to infer that both identify goods having same origin: Registrar of Trade Marks v. Compagnie Internationale pour l'Informatique CII Honeywell Bull, [1985] 1 F.C. 406 (C.A.) --Hearing officer, on behalf of Registrar, finding as fact label affixed to wares displays mark in design form followed by words "par/by Moores"--Words "par/by Moores" considered to be distinct from mark in design form on label--Issue treated as one of "distinctiveness"--Finding not unreasonable --Examination of label supporting respondent's position words "par/by Moores" not part of mark as in different font, outside design in which subject mark depicted, and in different language--Reasonable argument words "par/by Moores" not part of mark "Le Collezioni (Tradizioni) di Successo" used on label affixed to wares--Non-use mixed question of fact, law--Hearing officer not making any error-- Although Court may have reached different conclusion, should defer to expertise of Registrar--Evidence supporting hearing officer's finding: sales for wares sold in association with mark exceeding 18 million dollars from 1994 to 1998; promotional flyers showing Moores advertised, distributed wares in association with subject mark--Respondent manufactured wares to which labels with subject mark affixed by respondent, sold exclusively by Moores--Transfer of property happened in usual course of trade--Constitutes evidence of use--Applying standard of reasonableness simpliciter, hearing officer's finding reasonable, supported by evidence--Trade-marks Act, R.S.C., 1985, c. T-13, s. 45.