Ridout & Maybee v. Sealy Canada Ltd.
T-1412-98
Lemieux J.
5/7/99
21 pp.
Appeal under Trade-marks Act, s. 56 from decision of Registrar of Trade-marks involving "use it or lose it" provision in Act, s. 45-Whether absence of use by registered owner of registered trade-mark excused due to special circumstances-Sealy Canada Ltd. manufacturing household furniture in Canada-Since 1982, owner of trade-mark "Fantasy" for use in association with mattresses, box springs, convertible sofas, stationary sofas, chairs, adjustable beds-Registrar issuing s. 45(1) notice requiring Sealy to show use of trade-mark "Fantasy", special circumstances excusing non-use during period October 10, 1993 to October 10, 1996-Sealy filing affidavit of Craig Dunlop, Senior Vice-President, Chief Operating Officer since 1984 relating to absence of use of "Fantasy" trade-mark due to special circumstances-Three criteria must be considered when dealing with special circumstances justifying non-use of trade-mark: (1) length of time during which trade-mark not in use; (2) whether registered owner's reasons for not using trade-mark due to circumstances beyond control; (3) whether serious intention to shortly resume use-First factor, length of non-use, not met-Dunlop's affidavit not showing "the date when it was last so in use" under Act, s. 45(1)-Registrar had no idea when precisely use ceased-Finding on this point mere conjecture-In terms of second factor, Registrar erred in finding Sealy's non-use beyond control-Not sufficient evidence to enable him to make such determination-Third factor intention to resume use shortly-Actual resumption of use through sales to The Brick-Sealy's relationship with The Brick substantial, genuine in terms of "Fantasy" mattresses, box springs-Parliament did not intend mark should be expunged herein-Appeal dismissed-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 45, 56.