Curb v. Smart & Biggar

Curb v. Smart & Biggar

Because material new evidence was filed the Court reviewed de novo and concluded the evidence established use in Canada during the relevant period for audio and audio-visual recordings, posters (CD packaged with poster), entertainment services by pre-recorded music accessible and consumed in Canada via website, live music (confirmed concert within period), and production/publishing/distribution (distribution agreement and Vancouver video production); however evidence was insufficient to show t-shirts and caps were distributed or sold in Canada. Accordingly registration is maintained except deletion of 'clothing, namely, t-shirts and caps.'

Citation
2009 FC 47
Parties
Applicant: MICHAEL CURB; Respondent: SMART & BIGGAR
Court
Federal Court
Jurisdiction
Canada
Judgment Date
20 January 2009
Procedural Posture
Trade Marks Act S.56 Appeal From Registrar's S.45 Use Inquiry / Federal Court Hearing of Appeal With New Evidence; De Novo Consideration
Outcome
Appeal granted in part; Registrar's decision set aside in part; registration maintained except deletion of clothing (t-shirts and caps); no costs.
Legal Topics
Use Requirement Under S.4, Section 45 Expungement Procedure, Standard of Review, Evidence and Proof of Use, Removal of Wares From Registration
Source Language
English
Intellectual Property Trade Mark Law Administrative Law Use Requirement Under S.4 Section 45 Expungement Procedure Standard of Review Evidence and Proof of Use Removal of Wares From Registration

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Parties

MICHAEL CURB

Applicant

SMART & BIGGAR

Respondent

Procedural Posture

Trade Marks Act S.56 Appeal From Registrar's S.45 Use Inquiry / Federal Court Hearing of Appeal With New Evidence; De Novo Consideration

Legal Issues

  1. 1 Appropriate standard of review for Registrar decisions under s.45 when new evidence filed
  2. 2 Whether the Curb Records trade-mark was used in Canada during the relevant three-year period in association with: posters; t-shirts and caps; entertainment services provided by pre-recorded music; entertainment services provided by live music; production, publishing and distribution of audio and audio-visual recordings

Ratio Decidendi

Because material new evidence was filed the Court reviewed de novo and concluded the evidence established use in Canada during the relevant period for audio and audio-visual recordings, posters (CD packaged with poster), entertainment services by pre-recorded music accessible and consumed in Canada via website, live music (confirmed concert within period), and production/publishing/distribution (distribution agreement and Vancouver video production); however evidence was insufficient to show t-shirts and caps were distributed or sold in Canada. Accordingly registration is maintained except deletion of 'clothing, namely, t-shirts and caps.'

Court Disposition

Appeal granted in part; Registrar's decision set aside in part; registration maintained except deletion of clothing (t-shirts and caps); no costs.

Orders

  • Appeal granted in part.
  • The Registrar's decision of 27 March 2008 is set aside.