Ex.C.R.] EXCHEQUER COURT OF CANADA 513 BETWEEN: 1948 May 31 SAMUEL COHEN APPELLANT; June i, 2 &3 AND July 24 THE REGISTRAR OF TRADE MARKS .. RESPONDENT AND THE EMPIRE SHIRT MANU-l OBJECTING PARTY. FACTURING CO. LTD. J Trade Marks—"Esco" and "Escone"—Similar wares—Similar marks— Likelihood of confusion resulting by contemporaneous use of similar marks in same area.—The Unfair Competition Act 1982, secs. 2 (k) (1), 26 (f), 29 (1) Appeal dismissed—Motion for declaration under 8.29 (1) of the Unfair Competition Act dismissed. An application for the registration of the word "Escone" as a trade mark in connection with the sale of wares described as "ladies and girls fur coats, cloaks, coats, suits, sport coats, jackets, slacks, dresses and dress suits", was refused by the Registrar of Trade Marks. At the hearing of an appeal from such refusal the Empire Shirt Manufacturing Company Limited appeared as objecting party its word mark "Esco" having been registered for use in connection with wares described as "work shirts and other garments". At the hearing of the appeal, appellant moved foi• a declaration under s. 29 (1) of the Unfair Competition Act 1932, that the word mark "Escone" has been so used by him as to become generally recognized by dealers and users of the class of wares in association with which it has been used as indicating that the appellant assumes responsibility for their character and quality throughout Canada. Held: That the wares for which the mark "Esco" is registered and the wares for which appellant desires to register the mark "Escone" are similar within the meaning of The Unfair Competition Act 1932, s. 2 (1). 2. That the word marks "Esco" and "Escone" are similar within the definition of "similar" in The Unfair Competition Act 1932, s. 2 (k) since the contemporaneous use of both marks in the same area in association with the wares manufactured by the parties would be likely to cause users of such wares to infer that the same person assumed responsibility for their character or quality, or for their place of origin, and that confusion would thereby be brought about; the registration of the word mark "Escone" is therefore barred by s. 26 (f) of The Unfair Competition Act due to the prior registration of the word mark "Esco". 3. That the motion for a declaration under s. 29 (1) of The Unfair Competition Act must be dismissed as the evidence does not establish the essentials of such application. 18765-2a
514 EXCHEQUER COURT OF CANADA 4 [1948 1948 APPEAL from the refusal of the Registrar of Trade S. coHEN Marks to register the word mark "ESCONE". , • THE REGISTRAR The motion was heard before the rionbnrable Mr. ;IList ice °FTRADA Cameron at Ottawa. '..rack-Rudner'iOi appellant» ; ' 'L H. Gerin Lajoie K.C. for objecting party. No one appeared for the Registrar Of 'Trade Marks.'- The facts and questions of Jaw raised , are stated in, the reasons, for judgment. • .„ s ''CAMERON' J. now" (July 24, -1948)- delivered the' following judgment: This' is an appear frOrn the Registrar of Trade-Marks who rfused the application of the appellant to regieter the -word_ mark. By. order:, of this , Cour th e Objecting- Party was added as -a party to these , proceedings. At the hearing the Registrar of Trade MarketiPpearéd,but was not represented by' counsel and took no_, Part in. the proceedings. Under date of December 21,,1945, the 'appellant applied for, registration of h'is word ,mark, "ESCONE" for, use on wares described as: boys'; atcen's»and womeii's fur coats;- rcloaks, suits; dresses, sportswear and blouse; and men's coats, suits and sportswear; infants' and children's fur coats, coats, suits, dresses, blouses, shirts and sportswear; men's shirts, overalls and' working suità. ' -In 'his application the appellant 'stated that he had' used the mark since the 1st of December, 1937, on thé wares -above mentioned. At the hearing _ it was well established that thé appellant had not' at a'ny' iine manufaCtured or Sold many of the articles above referred to Following notice from the Registrar that the -statement of,, Wares on the application was not-satisfactory, thé appellant-filed an amended ' application for registration ' Of the same mark for wares 'described as: ladies' and girls' fur coats, cloaks, coats;Suits„,sport, ,ceats, jackets, slacks, dresses and dress suits. 'Anest '31;,, 1.934,:*);e:,'(iJée,ïhig Party hd.'obtitined registration of its word mark, consisting of the word
E:C.R.] EXCHEQUER COURT OF: CANADA •515 "ESCO,'' as applied to "work shirts and. ether garments," 1948 _under -No: ' N.S. 4580; Reg. • 15. , The' Registrar; being of •the S.'CiOHEN- =opinion- that the 'said trade , mark "ESCO" might be similar Tsï -te the' weird mark "ESCONE," = notified the :Objecting 'Party oEGIs ~ R of;the application, for'-registration of the, word `.`+SCONE'''; Mnx$s and' the-Registrar,, being of - the opinion• that the .objections cameroaJ'. then raised by the + Objecting ' ,,Party ', were •not - frivolâus, - notified the appellant under-the provisioris of sec. 38 (2) ;of °'the Unfair Competition 'Act, "'1932,! that: his , application was. refused., - , • Thè 'issues' are defined in thé: pleadings. -̀ 'On April' 2, 1948;' `tlie Objecting Party = filed its` 'Nôtre of Objection in 'Which 'i't Set' but the' 'f which'>I° havé°'abbté Mentibnéd, ''âlleged: that the'word'-"ESCO"''and' the worde"ES'CONE" Were "similar;" . that 'the wares as 'to which the' said wôrd li4ârk "ESCO'r'hâd been rêgisteréd and thôse'as` applied to which the appellant had ight'registration of'"ESCONE," were "similar," 'and that the-'côntemporaneons' usé' sin the -Saine 'area of ' thé" 'said marks; b'ôth - as 'applied"to garments `Or • îclothing, "would` bé ` liabté '- t6' cause - confusion: In 'its answer' to -the Objèét'ine-Party's stntemént ef'bbjec'tiotis'the appellant; 'after'traversing-thé ob'jection's raised, 'denied: that the marks were "similar" and'in- par: 12'âtatèd: ° ' ' 12. That the wares tô which the said mark "ESCO" has ''èé i registered, 'and ; those, as applied to which appellant has • sought registration in" his name of the word mark "ESCO,NE" are not similar within the meaning of' the' Unfair Cbth etition Âct, 1932. , In reaching a conclusion as to whether the_ registration of the: word, mark "ESCONE" was -properly refused,, it is necessary to consider the issues as raised by the pleadings, on two main - points: (IY'are the wares' in connection with frhicli'the appellant, desired to ,regi'ster his'inar""h'"+CONE" similar (Within` 'the definition" thereof' in sec: 2' (l) of' the Unfair Compétition Act) to the' wares far •which' registration of the trade 'mark "ESCO"' had been 'granted- 'te the "Objecting` Party in '1934, 'namely, '"work 'shirts and ;ether , garments?'; and ,(2)' is the' ,word 'Mark "ESCO'NE"''similar «(as defined'in sec,,, 2 (k) of the Unfair Competition Act,), to, the--,registered trade- mark', o£ the • Objecting Party, -"ESCO, registered; in 1934. r _, I. shall' first consider; the question of similarity -of -wares. As has been noted' above; the pleadings have, -confined. this 18765-21a
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516 EXCHEQUER COURT OF CANADA [1948 1948 issue to a comparison between the wares to which the s. C E x mark "ESCO" has been registered, namely, "work shirts T$E and other garments," and those wares in connection with R w en . STRAR which the appellant desired to register "ESCONE." No- TRADE 1\ AAs where in his pleadings does the appellant seek to establish Cameron J. his case on the ground that his wares should be compared with those on which the Objecting Party has, in fact, used its mark. At the hearing counsel for the Objecting Party objected to evidence submitted on behalf of the appellant to indicate what garments the Objecting Party had manufactured and on which it had used the mark "ESCO." I reserved my decision thereon, permitting the appellant to give such evidence subject to my later ruling as to its admissibility. In view of the issues as raised in the pleadings and mentioned above, I am of the opinion that such evidence is irrelevant and should not be admitted. The appellant has not launched a motion under sec. 52 (1) of the Act to have the register amended so that the word "ESCO" should be limited to those garments which the Objecting Party had manufactured, but his counsel, in argument, suggested that I should make such an order. I must refuse to give consideration to that matter until it is properly before the 'Court. The "wares" in connection with which the Objecting Party's mark is registered are "work shirts and other garments." In the Shorter Oxford English Dictionary (Third Edition, reprinted 1947), the word "garment" is defined as follows: any article of dress; in sing. esp. an outer vestment; in pl.—clothes. Undoubtedly each of the enumerated "wares" referred to in the appellant's amended application is within the term "clothes." I have no hesitation in finding, therefore, that in the manner in which the issues are before me, the "wares" for which "ESCO" is registered and the "wares" for which the appellant desires to register "ESCONE," are similar within the meaning of sec. 2 (1) of the Unfair Competition Act. The appellant admits that all the articles he manufactures are garments. It may be added, however, that if I am in error in excluding the evidence above referred to, that such evidence establishes beyond question that the Objecting Party had at times manu-
• Ex.C.R.] EXCHEQUER COURT OF CANADA 517 factured and sold certain of the "wares" for which the 1948 appellant seeks registration of its mark and bearing the S. COHEN word mark "ESCO," and more particularly certain coats, V. THE sport coats and jackets used by men and women, and boys REGISTRAR OF Tams and girls. MARES Reference may be made to the case of Vasenolwerke Dr. Cameron J. Arthur Kiipp Aktiengesellschaft v. The Commissioner of Patents and Chesebrough Mfg. Co. (1). In that case the appellant applied for the registration of "Vasenol" and the respondent, owner of the trade mark "Vaseline," appeared as Objecting Party. In that case the late President of this Court stated' at p. 205: For the purposes of the Unfair Competition Act 'I think it can fairly be said that the wares for which Chesebrough is registered in Canada, and the wares for which the applicant seeks registration in Canada, are similar. On his finding that the wares were similar and that the words "Vasenol" and "Vaseline" were similar, the application was refused. The remaining question for consideration in the appeal is whether the word marks "ESCO" and "ESCONE" are similar within the definition contained in sec. 2 (k) of the Unfair Competition Act, which is as follows: (k) "Similar," in relation to trade marks, trade names or distinguishing guises, describes marks, names or guises so resembling each other or so clearly suggesting the idea conveyed by each other that the -contemporaneous use by both in the same area in association with wares of the same kind would be likely to cause dealers in and/or users of such wares to infer that the same person assumed responsibility for their character or quality, for the conditions under which or the class of persons by whom they were produced, or for their place of origin. "ESCO," the registered mark of the Objecting Party, is made up of the initial letters of the words "empire" and "shirt" and the abbreviated form of "company." It has been widely used by the Objecting Party for a great many years, the evidence establishing that it was in use long before 1934 when it was registered. The business of the Empire Shirt Company was commenced in 1894. It is now of a very substantial nature, doing business throughout the whole of Canada, employing up to six hundred persons, at times using 3,200 yards of cloth a day, its total annual output now running over $2,000,000. Sales are made to wholesalers, jobbers and to chain stores. It has turned (1) (1935) Ex. C.R. 198.
518 EXCHEQUER COURT tOF CANADA ; [ 1948 1948 out as •'many ' àS 10,000 garments : a Y day `. bearing, its' 'mark It 'is admitted thàt its-„T$E before the, appellant first ,used, his mark IREGISeliAR ` Thé word 'mark=''`'`ESCONË`";" Was' -'àdopted• ~ by S'ainûel OF MARKS Cohen, the appellant, as the phonetic equivalent Cameron J. Côhen." ; 'Mr.. Cohen', commenced: his presents business in 1,930'•-ancl,' nowN'inantîfactures•-ladies' coats' and snits and dress suits Ati one aiméle.'Made''dresses?‘'sla'cks and= coats,, 'bût r`these' lines, application, 'fi©r , registration he stated .that the rn_ar-k `-,̀ E,SCONE had been , first, useds by; him'9in 1937,, Vbüt' in evidence he stated that he thought:ittIh'ad 'been in two &'three" years `before that datés bût Was Yxiotquite 'sure. Ll s' ;totâl `ales' inA'1947,' e eeeded' 400,000• and "`about ,80 per cent of his output was sold under the "ESCONÉ" mark. For many years he has been using a label bearing ,that mark and Elie w$rd '`rcReg'd."`='He'states,that`he,'th'ôiight'he`gave iïistriictibn''s £ô'â"È6ri the mark registered and assumed that it 'hâd`' beéii' done, 1Dut •'Would not swear' that he -had''everi given" `such •in'struc-tions. `n While ` an 'etnplôyee' gave . sbme verbal support to this''stâteinent,''nô doetlmén'tarÿ`è idëhc'e''of'ânÿ'sdrt``wàs produced to establish' that 'süçh' was'" th'é' éâ's ' °''He admits 'that' he was ''never `"'âdvisei 'that' 'registration' 'hâd' been granted, but ,.merely assumed' that, his, instructions were carried out: , `On the ,evidenC it is - clear that,,the, ;cods manu f a tired iby, the,sappellant.are in -the.'main more-expensiveLthanz those made by the Objecting-Farty:'r They are materials and .of Y a, nature that. usually, requires a ,personal itting,su~l as,l dies',~loaks, oats, ere sold in departmental r some, of the chain„ s tores,, The objecting Party,,ngw manu- factures principally negligee arms sport .grid pyjamas nigh -̀ r j , _ t o ,s . h }rts, sport and co wear',,. wni ter,style shirts;j boy ' and sirls' scout ep,d shirt s̀;, and , m anÿ',of ,_these,r for men`-an d boÿs, ar C e. pur ~4 ~, iris a as, well. Sm n e thhe registration of,,, its Ca : , bj,eétin` Party, has x alp ladies' py~alnas,lï géri , dresses ; ~ a a~ n +Y d  4 othe ~ r, yar-I ,ticles for, wo "+.~ r -.e ,•., pyjamas, dresses, playsui'ts, smocks' 'and overalls have not Word mark Was registered havé been r: discontinued.+rriIn- his 'usé .solicitor, no`w''deèéâséd, to'hâvé a . , -of Moriexp•ensive jackets, end a suits. They 'stores, leading retgail, stores and work shirts ,ç a ~, t •~ ja 6 c k ~ e 3 t s ;,, men ' C s u ~ n der- tÿ articles, vghile designed primarily i chased and., worn bx woïnen end ' r ,`. .k, a, N,; ', E~~sYI l'r ,,d mark , t .e iii a3E men and, girls on jly, ,bût,. ladies' r Y € r`, 'A. ,e^, ~ :t' "è
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rEx.C.R.] EXCHEQUER , 'COURT,'M CANADA ,519 been made , for some years. The 'ESCO" wares are sold 1948 J.11. all tpes of stéres handling dry goOdS'and, furnishings . ,s,EO;EN The, mark "ESCQ" is widely used by, the Objecting Party ,_ Tviis on its, cheques, invoices, statements; staticinery,,,and, on its Rei I STRAR OFTRAPE tags ,and labels and packaging,' as 'e l l -as in ',advertising. " MARKS It is, established, by the evidence that, in some specialty camerong 'stores—such as the better class ladies' coat,and dress shops —the goods now manufactured by the 'Objecting -Party would not, likely be,.on sale,; and, that, in large, departmental stores the goods of the appellant and the Objecting - Party would both be sold, although possibly in different' depart- nents the 'other hand,, ShOWn'tht in chain stores and general stores *here there is less or no departinéntaliza-ton of goods wares similar to these of bbth parties ,hereto woùId 'be' Oh' sale' on ',aajaceor in some Cases sdd. ethe sine —counters 11 , 'The 'prineip4 to be fcilleed in reaching a conclusion to 'whether two wo r r d marks are similar, are set out in many cp,s'es2 Reference may be made' to 7ie British Drug s Limited y Bq,itle hçt tmL ac j'affipiiedW-thé upreme Coirt of'Panada, 1d46,)S.d.11,.- 50. Kerwin, -J., in deliyering jirclginent,' cited 'the test referred to M the speech viseoünt.Maugham' in the 'House of 'tore in tlieCasie of Aristoc Limited y ROtet Limited (2), as follows: answer théceluestion whether t1sbil df'6U WOrd ?réseinbis 1-too nearly the sounkird Etnothei so 'site` bAg thré f ernier` within the limits .of:s; 12y-0144, 1'174e LIVIarkà .4et„ 1958, must-nearly always depend on ,first impression, . for obviously _ a p effrisrohno., s Jainihar wiph:both words '-Willeithéi:bedeeel; nor eàrifUsecl:, it is`the-arààn wh Pilly' knows the lone v6rcl»Éttid 'his perhaPi'àii in115érfeet 2réeolleefion' of it, who 'is likely bé`. deceiye4, dr:confused..' Little assiEitimee, therefore; is to be-ebtained ,..from,s, metienlous, ,comparison , :the ftwà „words, lettei: Jettey, and sylithleiby syllable, prouonneed' with the 'plalty r to be eipeeted from a r tnclierbI dleye-utiàn. 'PC) Maki allav'aitnee`fUr imperfect /reccillection. ândi the/ ffeet. earèleW p'rônuneiation and iipeeeh on the part not only of the person seeking to buy under the tradé,desprip-tion, but , also of the sho,p asistant,miuisteringto that person's wants, • !The , gen_eral :approach, kt- the,solution, qf, aj problem,, of ;this,kinçl-,was stated by?gker 41 1 - thee eianot,ist Comm - ,, , , You• must take the ,o ,yvords„, you ,must of then3;,h9th,ly `Mieir.1PPE, and' hij ihéir othd. You must consider the gPPet Which theSr CI° bk'apiilied: 'Mist consider 'the 'iiatüre 'and '-kind 'rof (1) (1)'x. C.R.239. i(3) .(1606)' -23 R.P.0 774 at 777. (2) (1945) A.C. 68.
520 EXCHEQUER COURT OF CANADA [ 1948 1948 customer who would be likely to buy those goods. In fact, you must -̀r consider all the surrounding circumstances; and you must further consider S. C v o . a Ex what is likely to happen if each of those trade marks is used in a normal THE way as a trade mark for the goods of the respective owners of the marks. REGISTRAR If, considering all those circumstances, you come to the conclusion that of TRADE there will be a confusion—that is to say, not necessarily that one man will MARKS be injured and the other will gain illicit benefit, but that there will be a Cameron J. confusion in the mind of the public which will lead to confusion in the goods—then you may refuse the registration, or rather you must refuse the registration in that case. This statement was quoted with approval by Davis J. in the Pepsi-Cola v. Coca-Cola case (1). In this case it is admitted that there is no proof that confusion has arisen, although the wares of the parties bearing their respective marks have both been sold throughout Canada since 1937 at least. That is a matter to be taken into consideration but it is not here the determining factor. The fact that there has been no proven confusion may be attributed, I think, to the fact that during those years the goods of the Objecting Party, in the main, have been of a relatively inexpensive character and mainly designed for men and boys (although widely used by women and girls as well), while the goods of the appellant have been more expensive and 'limited to ladies'. coats, cloaks, jackets and suits. But it is to be kept in mind that the application of the appellant also includes ladies' dresses and slacks, both of which have been manufactured in the past by the Objecting Party, and that there is nothing to prevent the latter from again manufacturing these articles, or the other articles which it now manufactures from other and more expensive materials, and using its mark "ESCO" thereon. In fact, the evidence is that the Objecting Party now proposes to expand its lines and has taken steps to do so. If that is done, then undoubtedly the wares of the parties hereto will be in more direct competition than at present. Keeping in mind the principles laid down in the cases to which I have referred, I have reached the conclusion that the word marks "ESCO" and "ESCONE" are similar within the definition of that word (Supra). "ESCONE" is made up of the entire word "Esco" and two additional letters. The sound of the two final letters of "ESCONE" does not distinguish that word from the word "ESCO" (1) (1940) S.C.R. 17 at 32.
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Ex.C.R.] EXCHEQUER COURT OF CANADA 521 unless pronounced in a very clear manner, the emphasis 1948 being entirely on the first four letters which have exactly S. c EN the same sound as the Objecting Party's mark. A dealer THE in the wares of both parties, due to his superior knowledge RE GISTRAR of the origin of such goods, might have but little difficulty MARgs in distinguishing them. But the user of such goods, and Cameron J. particularly one having but an imperfect recollection and — desiring to purchase under the trade description, would be most likely to be confused. Applying the tests both of sight and sound, I have reached the conclusion that the con- temporaneous use of both the marks in the same area in association with the wares manufactured by the parties hereto would be likely to cause users of such wares to 'infer that the same person assumed responsibility for their character or quality, or for their place of origin, and that confusion would thereby be brought about. The registra- tion of the word mark "ESCONE" is therefore barred by the provisions of sec. 26 (f) of the UnfairCompetition Act due to the prior registration of the word mark "ESCO." I have not overlooked the argument of the appellant that the Objecting Party has acquiesced in the use of the word "ESCONE." I find, however, that in fact there has been no such acquiescence. I accept the evidence of the general manager of the Objecting Party that he had heard of the use of the word "ESCONE" but once. In 1941 his Toronto jobber told him that he had heard that the word "ESCONE" was being used but there is no satisfactory evidence to show that he knew by whom it was being used, or on what goods. He had no direct knowledge of its use until notified of the appellant's application in 1945, from which date its registration was opposed. In my opinion the Registrar's decision was right. The appeal will be dismissed with costs to the Objecting Party, after taxation. The other matter for consideration is the motion brought by the appellant in these proceedings. At the opening of the hearing, counsel for the appellant filed a Notice of Motion which on the same date had been served on the Registrar of Trade Marks and counsel for the Objecting Party. This motion was for a declaration under the provisions of sec. 29 of the Unfair Competition Act that the word mark "ESCONE" had been so used by the
1522 EXCHEQUER COURT OFv "CANADA 1948 appellant as i to become generally recognized by s..ConÉN.• and/or users of the class of wares in:'associationlwith which gHv. • the.~•-said mark had-been used,-as 'indicating that ;the said REGISTRAR, appellant ï assumed responsibility. -for their ; character or M DE ARÈâ quality ' •throùghoût ',Canada. ; This •.motion was made in Cameron J: the alternative -arid was to 'be!cons'idered only 4f, the' Court; on. the main, appeal; 'was of :the -opiniônz,that Mark "ESCONE"- •was, they appeal. I~aW -of`; the opinion •that''this° At thésopehinedf the héâring;'wheif'the Tnbtioxi-wa,à to by counsel' fo'r 'the`ap'pellant;•`I• statéd that give • ébnsidetation to:the. motion ' ûntil ' the âppeal» was 'Concluded. ' N6''objection -was • tak'en "tô that: ruliiig, but upon -the eôiiipletion%ofi'the évidenee led :bÿ the âppéllhiit his'rcéunsél 'asked' that -'côn'sidered `-as' evidence 'iri' sup Sort bf "this motion:: Cbunsél for>th`e"Obj doting Pa' rty'had'procé ded on the nüdërstândirig that'; the' entire •xribtion= wduld `bë 'deâlt With da later'sta°ge and1-had therefore neither .cross-examined the -witnesses called by the appellant • in coxinectidn;, withI. the ^motion, •nor did he , later lead any motion: ,, However,} at the arguirient by. both ,parties--6n th;&motiôn itself,: subject to the `Objection.-raised rby cbünselZfbr •th much a's the Objecting•Tarty had no'nôtice`•o tion, Until, the opening of'.•th& hearing ybf the `appeal,' and had, therefore• no opportunity regard ;thereto;, ,I-.am-rof .fore'short leave ?to' serve` the 'Nôtice. been refused. On_; the ymer-its tl ât theMotion shouldibe, dismissed. MIS an 'essexîtial part of ,any application innder'sec.- 29 , of the Unfair 'Competition Act that the applicant' `shoed isàtisfyithe;,Court.,that -.the,prbposed iark,has been so:i'used fbycany , persdn as to;have--becomeigenerally_ recognized .dealers , in and/oîr ûsers-of the class,of,-.wares in''âssociatioii with, which.-it hasrbeennsed, assumes:responsibilitymfor their; chârac ter "br quality,y fdr .the conditions .under- which. o'r the they lave +been •prodiicedor.for°,their rblace of origin:".The .present :application fnade` 'ôxi" the= lSasis'' that =the mark s [1948 , dealers •in ,the said •Word not registrable 'and .had, dismissed , ~~+ 'xtiotion niu'it be dis{nissëd. ,'réfêrre'd 7 I <woûlenôt évidei e'sô :intrddizeed shôûld'bé evidence in oppo'sïtiôh 'to the , conclusion, .of°;the trial,•:hheard -e'respbndentt ', Inasf t + h is' applica, -of calling anÿ evidenéez , the 'opinion °that-the :application 4 of Motion' should Éhave ; alsoi I-am. of the opinion .° (1) ,bar : as4 indicating. that such;pérs'oh -'class,'af,person' by when).
Ex:C:R.] EXCHEQUER COURT' OF CANADA 523 "ESCONE" has become generally recognized by:dealers 1948 ôr users ss,indicâting that, Samuel Cohen. assumes:respônsi= s. c EN bility. for their character • ôr quality throughout Canada. TaE None of the evidence submitted by the appellant estab- REGISTRAR OF I.itADE lishes this to be the case. There is evidence that the word MA RAS " -`ESCONÈ'-' has -been 'Used by' the appellant on. his wares Cameron J. since about 1935, although in his application for registratiori he stated that the first user was in 1937. There is also some evidence that purchasers of his goods ' have asked f or them under the name of "ESCONE."_, } There is no evidence, however, to indicate that "ESCONE" has been used so as to, have become ,generally recognized- by, dealers in and/or users of the appellant's wares as indic_atiriOhat Samuel Cohen assumes responsibility for their character or quality. The 'Notice of' Motion rèfèr-red' to the affidaviVof Sa`'muel Cohen, dated May 31, 1948, but counsel for the -appellaïit did not aread,: the'saidi,afiidavit, wheat the motion ;was heard. In sang event,; that<affidavit„ which, is -that, of; the-appellant himself, is,not helpful tohis•,case., He states in par. that the, said, unyogistered trade - marls "ESCONE'' has, =become generally recognized bÿ dealers in and/or users Of n th_ a class of wares in association 'V itii:'tivhïC, h-'bhé''said'mark''lia`s been +u'se'd' uk indicating that. I, thé r said Samuel: `Cohen,: aésume responsibility_, for' thew' character • or ïgnàhty throughout ,Canada. , , , , , ; '•'That"'évidence, 'of -éoiirse,` ts'quite• inadmissible as being entirely' hearsay. r -' '-- ' L . -, , eierçi'sïng• the'_ discretion' vested in the Co irt`bÿrse'c:'29(1) Of 'the-Ac't, Lthiss motion will be disînissèd:'' Tlié 'Objebfing Party-i's' ërititled to its edsts" 'of 'the- motion: ' ~ 1.4, j , . _ :Judgment accordinglÿ. , ,,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.