Parfums de Coeur, Ltd. v. Asta

Parfums de Coeur, Ltd. v. Asta

The Court dismissed the application because the Declaration of Use contained an innocent (or at most negligent) overbroad misstatement but the registrant had in fact used the mark in association with shampoo and conditioner and had amended the registration accordingly; s.57 does not permit striking an entry that...

Source-derived case information.

Citation
2009 FC 21
Parties
Applicant: Parfums de Coeur, Ltd.; Respondent: Christopher Asta
Court
Federal Court
Jurisdiction
Canada
Judgment Date
8 January 2009
Procedural Posture
Application Under S.57 of the Trade Marks Act / Decision on Application (judgment)
Outcome
Application dismissed with costs; Amended Registration upheld in respect of shampoo and conditioner
Legal Topics
Expungement of Registration, Declaration of Use, Misrepresentation, Registration Validity, Amendment of Registration
Source Language
english
Trade Marks Intellectual Property Civil Procedure Expungement of Registration Declaration of Use Misrepresentation Registration Validity Amendment of Registration

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Parties

Parfums de Coeur, Ltd.

Applicant

Christopher Asta

Respondent

Procedural Posture

Application Under S.57 of the Trade Marks Act / Decision on Application (judgment)

Legal Issues

  1. 1 Whether Registration No. TMA 604,943 should be struck from the Register under s.57 for a Declaration of Use containing a fraudulent or materially false statement
  2. 2 Whether the misstatement was fraudulent or innocent and whether it was material to registrability
  3. 3 Whether the registrant had in fact used the mark in association with shampoo and conditioner such that the Amended Registration accurately reflected existing rights

Ratio Decidendi

The Court dismissed the application because the Declaration of Use contained an innocent (or at most negligent) overbroad misstatement but the registrant had in fact used the mark in association with shampoo and conditioner and had amended the registration accordingly; s.57 does not permit striking an entry that accurately reflects existing rights where the misstatement was not fraudulent and the defect is cured by amendment, so the Amended Registration stands for shampoo and conditioner.

Court Disposition

Application dismissed with costs; Amended Registration upheld in respect of shampoo and conditioner

Orders

  • Application dismissed with costs
  • Amended Registration (covering shampoo and conditioner) is not struck