Spirits International N.V. v. Canada (Registrar of Trade-Marks)
The Applications Judge correctly applied the reasonableness simpliciter standard and the Harris Knitting Mills three‑prong test and reasonably concluded there was sufficient evidence of special circumstances to permit the Registrar to find excusable non‑use; therefore the appeal is dismissed.
Source-derived case information.
- Citation
- 2007 FCA 162
- Parties
- Appellant: Spirits International N.V.; Respondent: Registrar of Trade-Marks; Respondent: SC Prodal 94 SRL
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 19 April 2007
- Procedural Posture
- Appeal to the Federal Court of Appeal From Registrar of Trade Marks Decision / Judgment Delivered
- Outcome
- Appeal dismissed with costs.
- Legal Topics
- Excusable Non Use, Standard of Review, Trade Mark Registration Practice, Special Circumstances, Section 45 Notices
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Spirits International N.V.
Appellant
Registrar of Trade-Marks
Respondent
SC Prodal 94 SRL
Respondent
Procedural Posture
Appeal to the Federal Court of Appeal From Registrar of Trade Marks Decision / Judgment Delivered
Legal Issues
- 1 What is the appropriate standard of review for the Registrar's decision?
- 2 Whether the Registrar had sufficient evidence of special circumstances to find excusable non-use of the trade-mark under the Harris test
- 3 Whether issuing a second notice under s.45 while maintaining a registration is appropriate practice
Ratio Decidendi
The Applications Judge correctly applied the reasonableness simpliciter standard and the Harris Knitting Mills three‑prong test and reasonably concluded there was sufficient evidence of special circumstances to permit the Registrar to find excusable non‑use; therefore the appeal is dismissed.
Court Disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs.
Full Case Text
Judgment text and source record
1 paragraphs
Spirits International N.V. v. Canada (Registrar of Trade-Marks) Court (s) Database Federal Court of Appeal Decisions Date 2007-04-19 Neutral citation 2007 FCA 162 File numbers A-248-06 Decision Content Date: 20070419 Docket: A-248-06 Citation: 2007 FCA 162 CORAM: SEXTON J.A. PELLETIER J.A. MALONE J.A. BETWEEN: SPIRITS INTERNATIONAL N.V. Appellant and REGISTRAR OF TRADE-MARKS and SC PRODAL 94 SRL Respondents Heard at Ottawa, Ontario, on April 19, 2007. Judgment delivered from the Bench at Ottawa, Ontario, on April 19, 2007. REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A. Date: 20070419 Docket: A-248-06 Citation: 2007 FCA 162 CORAM: SEXTON J.A. PELLETIER J.A. MALONE J.A. BETWEEN: SPIRITS INTERNATIONAL N.V. Appellant and REGISTRAR OF TRADE-MARKS and SC PRODAL 94 SRL Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on April 19, 2007) MALONE J.A. [1] We are all of the view that this appeal should be dismissed. [2] The Applications Judge correctly concluded that the proper standard of review was reasonableness simpliciter and he conducted his analysis on that standard. [3] The Applications Judge reviewed the evidence relied on by the Registrar of Trade-marks in light of the three prong test in Registrar of Trademarks v. Harris Knitting Mills Ltd. (1985), 60 N.R. 380 (F.C.A.). We are unable to say that the Applications Judge committed any error when he concluded that there was sufficient evidence that qualified as special circumstances so as to permit the Registrar to conclude that the registrant had met the test for excusable non-use of the trade-mark and that the Registrar’s decision was reasonable. [4] That said, it seems to us that the practice of maintaining the registration and simultaneously issuing a second notice under s.45 is to be discouraged. Such a practice can have no other effect than that which it had here, which is to put into question the soundness of the first decision. [5] We would dismiss the appeal with costs. "B. Malone" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-248-06 STYLE OF CAUSE: SPIRITS INTERNATIONAL N.V. v. REGISTRAR OF TRADE-MARKS and SC PRODAL 94 SRL PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: APRIL 19, 2007 REASONS FOR JUDGMENT OF THE COURT BY: SEXTON, PELLETIER, MALONE JJ.A. DELIVERED FROM THE BENCH BY: MALONE J.A. APPEARANCES: Bayo Odutola Sylvie-Émanuelle Bourbonnais Bruce Morgan FOR THE APPELLANT FOR THE RESPONDENTS SOLICITORS OF RECORD: Odutola Professional Corporation Ottawa, Ontario Gowling Lafleur Henderson LLP Ottawa, Ontario FOR THE APPELLANT FOR THE RESPONDENTS