Atlantic Engraving Ltd. v. Rosenstein

Atlantic Engraving Ltd. v. Rosenstein

Although there may have been substantive evidence of use and association, the applicant's evidence was procedurally deficient (poorly drafted affidavit and improperly submitted exhibits); the appropriate remedy was to adjourn and permit the applicant thirty days to file a compliant affidavit and allow the respondent thirty days to reply, while maintaining the Registrar's finding that there was no evidence of association for specified wares.

Citation
2001 FCT 1279
Parties
Applicant: Atlantic Engraving Ltd.; Respondent: Lapointe Rosenstein
Court
Federal Court
Jurisdiction
Canada
Judgment Date
21 November 2001
Procedural Posture
Trade Marks Act S.56 Expungement/section 45 Application / Judicial Review of Registrar Decision; Hearing Resulted in Adjournment to Allow Perfected Affidavit Evidence
Outcome
Adjourned; applicant granted leave to perfect evidence; Registrar's decision maintained in part with respect to specified wares; costs awarded to respondent.
Legal Topics
Expungement, Use of Mark, Association of Mark With Wares, Evidentiary Admissibility, Adjournment to Cure Evidentiary Defects
Source Language
English
Intellectual Property Trade Marks Administrative Law Expungement Use of Mark Association of Mark With Wares Evidentiary Admissibility Adjournment to Cure Evidentiary Defects

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Parties

Atlantic Engraving Ltd.

Applicant

Lapointe Rosenstein

Respondent

Procedural Posture

Trade Marks Act S.56 Expungement/section 45 Application / Judicial Review of Registrar Decision; Hearing Resulted in Adjournment to Allow Perfected Affidavit Evidence

Legal Issues

  1. 1 Whether the Registrar properly expunged the registered mark under section 45/56 for lack of use and lack of association with wares at time of transfer
  2. 2 Whether the new affidavit evidence filed with the Court was admissible and met statutory requirements
  3. 3 Whether the Court should adjourn and allow the applicant to perfect its affidavit evidence or order immediate expungement

Ratio Decidendi

Although there may have been substantive evidence of use and association, the applicant's evidence was procedurally deficient (poorly drafted affidavit and improperly submitted exhibits); the appropriate remedy was to adjourn and permit the applicant thirty days to file a compliant affidavit and allow the respondent thirty days to reply, while maintaining the Registrar's finding that there was no evidence of association for specified wares.

Court Disposition

Adjourned; applicant granted leave to perfect evidence; Registrar's decision maintained in part with respect to specified wares; costs awarded to respondent.

Orders

  • Applicant shall have thirty (30) days to file a further affidavit that satisfies the requirements of section 4 of the Act
  • Respondent shall have thirty (30) days to reply to the applicant's further affidavit