Magnotta Winery Corp. v. Vintners Quality Alliance of Canada
98-T-57
Reed J.
10/3/99
15 pp.
Motion for extension of time to file application for judicial review of decision made by Registrar of Trade-marks under Trademarks Act, s. 9(1)(n)(iii)-Registrar accepting word "Icewine" as official mark used by Vintners Quality Alliance (VQA)-Decision followed by publication in Trade-marks Journal on May 27, 1998 of notice "Icewine" adopted, used as official mark by VQA-Applicants having interest in Registrar's decision, prejudiced thereby-Five of Magnotta companies manufacturing, selling icewine-Magnotta Winery Corporation member of VQA-Applicants' ability to sell affected by Registrar's decision-Notice published in Trade-marks Journal not seen by Magnotta, counsel-Counsel for Magnotta writing to counsel for VQA on September 2, 10, 1998, objecting to action taken, to VQA's position entitled to enforce "Icewine" official mark as trade-mark-Counsel for Magnotta instructed to proceed to Federal Court to challenge VQA official mark "registration" of "Icewine"-Applicants could not proceed under Trade-marks Act, s. 57 to have "Icewine" mark expunged from register-Mark not on register-Not clear whether appeal by applicants might lie under Act, s. 56-Applicants having far more direct interest in decision made-No mechanism available for challenging decision apart from s. 56 appeal, s. 18.1 judicial review application-Court granting applicants extension of time to allow them to commence proceeding-Applicants always had intention to challenge VQA's attempts to establish "Icewine" as trade-mark-Subterfuge involved in VQA's application for, obtaining publication of adoption, use of "Icewine" as official mark, without notice to Magnotta-Notice in Trade-marks Journal public notice to all world-Persons to whom notice given should expect to find information relevant to situation in journal before could be relied upon as notice to them-Applicants moved reasonably expeditiously after learning of Registrar's decision-Considerable prejudice to applicants if cannot challenge decision-Applicants having demonstrated continuing intention to challenge issuance to VQA of trade-mark rights in word "Icewine"-Whether judicial review application appropriate procedure should not be decided by this Court, but by Court of Appeal-Motion granted-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 9(1)(n)(iii), 56, 57-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).