Wing Wah Food Manufactory Products Inc. v. China Brands Food Products Inc.
The Court upheld the Federal Court judge's conclusion that the Board reasonably found the corporation was incorporated to take over the partnership business and that the evidence established a transfer of the business including trade‑mark rights; failure to renew partnership name registration did not negate the...
Source-derived case information.
- Citation
- 2006 FCA 387
- Parties
- Appellant: Wing Wah Food Manufactory Products Inc.; Respondent: China Brands Food Products Inc.
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 28 November 2006
- Procedural Posture
- Appeal From Federal Court Judicial Review of Trade‑marks Opposition Board Decision / Appeal (federal Court of Appeal)
- Outcome
- Appeal dismissed with costs.
- Legal Topics
- Trade‑mark Registration, Transfer of Business, Existence of Partnership, Judicial Review, Reasonableness Standard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wing Wah Food Manufactory Products Inc.
Appellant
China Brands Food Products Inc.
Respondent
Procedural Posture
Appeal From Federal Court Judicial Review of Trade‑marks Opposition Board Decision / Appeal (federal Court of Appeal)
Legal Issues
- 1 Whether a transfer of the business including trade‑mark rights occurred from a 1978 partnership to a corporation incorporated in 1986
- 2 Whether failure to renew the partnership name under the Partnership Registration Act negated the existence of the partnership
- 3 Whether the Trade‑Marks Opposition Board's finding was unreasonable
Ratio Decidendi
The Court upheld the Federal Court judge's conclusion that the Board reasonably found the corporation was incorporated to take over the partnership business and that the evidence established a transfer of the business including trade‑mark rights; failure to renew partnership name registration did not negate the partnership; accordingly the Board's decision to permit registration was not unreasonable.
Court Disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs.
Full Case Text
Judgment text and source record
1 paragraphs
Wing Wah Food Manufactory Products Inc. v. China Brands Food Products Inc. Court (s) Database Federal Court of Appeal Decisions Date 2006-11-28 Neutral citation 2006 FCA 387 File numbers A-70-06 Decision Content Date: 20061128 Docket: A-70-06 Citation: 2006 FCA 387 CORAM: LINDEN J.A. EVANS J.A. MALONE J.A. BETWEEN: WING WAH FOOD MANUFACTORY PRODUCTS INC. Appellant and CHINA BRANDS FOOD PRODUCTS INC. Respondent Heard at Toronto, Ontario, on November 28, 2006. Judgment delivered from the Bench at Toronto, Ontario, on November 28, 2006. REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A. Date: 20061128 Docket: A-70-06 Citation: 2006 FCA 387 CORAM: LINDEN J.A. EVANS J.A. MALONE J.A. BETWEEN: WING WAH FOOD MANUFACTORY PRODUCTS INC. Appellant and CHINA BRANDS FOOD PRODUCTS INC. Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on November 28, 2006) MALONE J.A. [1] This is an appeal from an order of Hansen J., a judge of the Federal Court dated November 28, 2005 (reported as 2005 FC 1611). The Judge upheld a decision of the Trade-Marks Opposition Board (the Board) which permitted the respondent to register the trade-mark PEONY Brand & Design. [2] The principal issue before the Judge was whether the Board correctly decided that there was a transfer of business, including the rights in the trade-mark at issue from a partnership created in 1978 to the respondent corporation incorporated in 1986. Reviewing on the basis of reasonableness simpliciter, the Judge determined that it was reasonable for the Board to find that China Brands Inc. was incorporated to take over the business of the partnership and that the evidence clearly established this. Further, she concluded that the respondent’s failure to renew the registration of the name of the partnership under the Partnership Registration Act did not affect the existence of the partnership. Rather, the question of whether a partnership existed or not was determined by the real intention of the parties as evidenced by their conduct taking into consideration all surrounding circumstances. [3] Considering the evidence as a whole, we are not persuaded that Hansen J. was wrong to conclude that the Registrar’s findings on the basis of the evidence before him were not unreasonable. [4] The appeal should be dismissed with costs. “B. Malone” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-70-06 APPEAL FROM THE ORDER OF THE HONOURABLE MADAM JUSTICE HANSEN DATED NOVEMBER 28, 2005, DOCKET NO. T-262-05 STYLE OF CAUSE: Wing Wah Food Manufactory Products Inc. v. China Brands Food Products Inc. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 28, 2006 REASONS FOR JUDGMENT OF THE COURT BY: Linden, Evans & Malone JJ.A. DELIVERED FROM THE BENCH BY: Malone J.A. APPEARANCES: Kenneth McKay FOR THE APPELLANT Mark Robbins FOR THE RESPONDENT SOLICITORS OF RECORD: Sim, Lowman, Ashton & McKay Toronto, Ontario FOR THE APPELLANT Bereskin & Parr Toronto, Ontario FOR THE RESPONDENT Date: 20061128 Docket: A-70-06 Toronto, Ontario, November 28, 2006 CORAM: LINDEN J.A. EVANS J.A. MALONE J.A. BETWEEN: WING WAH FOOD MANUFACTORY PRODUCTS INC. Appellant and CHINA BRANDS FOOD PRODUCTS INC. Respondent JUDGMENT The appeal is dismissed with costs. “A. M. Linden” J.A.