Stink Inc. v. Salt & Pepper Holdings Ltd.

Stink Inc. v. Salt & Pepper Holdings Ltd.

The Federal Court dismissed the appeal: the Board's factual findings that the appellant's THE STINKING ROSE was not well known in Canada by the material date and that the applicant had met the legal burden of showing its mark distinguishes its restaurant services were reasonable on the reasonableness simpliciter...

Source-derived case information.

Citation
2001 FCT 549
Parties
Applicant: STINK INC.; Respondent: SALT & PEPPER HOLDING LTD.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
18 May 2001
Procedural Posture
Appeal Under Section 56 of the Trade Marks Act / Federal Court Judicial Review of Trade Marks Opposition Board Decision
Outcome
Appeal dismissed with costs
Legal Topics
Distinctiveness, Reputation, Section 5 Trade Marks Act, Standard of Review, Non Distinctiveness, Use in Foreign Country, Actual Confusion
Source Language
english
Intellectual Property Trade Marks Administrative Law Distinctiveness Reputation Section 5 Trade Marks Act Standard of Review Non Distinctiveness +2 more

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Parties

STINK INC.

Applicant

SALT & PEPPER HOLDING LTD.

Respondent

Procedural Posture

Appeal Under Section 56 of the Trade Marks Act / Federal Court Judicial Review of Trade Marks Opposition Board Decision

Legal Issues

  1. 1 Whether respondent's mark THE STINKING ROSE was non-distinctive in Canada by reason of appellant's prior reputation
  2. 2 Whether appellant's mark had been made known or well known in Canada as of respondent's claimed first use (material date) under s.5
  3. 3 Whether the Board's factual findings were unreasonable on the reasonableness simpliciter standard

Ratio Decidendi

The Federal Court dismissed the appeal: the Board's factual findings that the appellant's THE STINKING ROSE was not well known in Canada by the material date and that the applicant had met the legal burden of showing its mark distinguishes its restaurant services were reasonable on the reasonableness simpliciter standard; no error in credibility findings and no basis to re-weigh evidence, therefore registration stands and appeal is dismissed with costs.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed
  • Costs awarded to respondent