Date: 19990122
Docket: A-603-97
CORAM: MARCEAU J.A.
DESJARDINS J.A.
ROBERTSON J.A.
BETWEEN:
OYEN WIGGS GREEN & MUTULA,
Appellant,
- and -
PAUMA PACIFIC INC. and
THE REGISTRAR OF TRADE-MARKS,
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia,
on Friday, January 22, 1999)
MARCEAU J.A.
[1] We are all of the view that this appeal taken against a Trial Division decision upholding a finding of the Registrar of Trade Marks cannot succeed.
[2] On the one hand, we do not accept the contention of counsel for the appellant that the Registrar"s conclusion was dependant on an illegal retroactive application of a new provision of law. Section 45 of the Trade Marks Act , under which the notice was issued to the registrant, was indeed amended in the course of the Registrar"s inquiry so as to require proof of use within the two preceding years and no longer at the date of the notice, but the finding of the Registrar was in no way related to this modification. A finding that special reasons existed which could support an application of paragraph 45(3), here essentially concrete steps to reactivate, is bound to stand under either of the two versions of the section.
[3] On the other hand, while it seems that the mere expression of an intention to reactivate could hardly be seen as sufficient to bring into play paragraph 45(3) of the Act,1 we are not prepared to dispute the position of the Registrar that the actual realisation of that intention by the taking of concrete steps prior to the notice could be sufficient.2
[4] As to the understanding and interpretation of the affidavit evidence by the Registrar, all we say is, as a second court of appeal, we see no basis on which we could intervene as if it had been done capriciously and clearly erroneously.
[5] The appeal will be dismissed with costs.
"Louis Marceau"
J.A.
Date: 19990122
Docket: A-603-97
CORAM: MARCEAU J.A.
DESJARDINS J.A.
ROBERTSON J.A.
BETWEEN:
OYEN WIGGS GREEN & MUTULA,
Appellant,
- and -
PAUMA PACIFIC INC. and
THE REGISTRAR OF TRADE-MARKS,
Respondents
Heard at Vancouver, British Columbia, on Friday, January 22, 1999.
Judgment rendered from the Bench on Friday, January 22, 1999.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
IN THE FEDERAL COURT OF APPEAL
Date: 19990122
Docket: A-603-97
BETWEEN:
OYEN WIGGS GREEN & MUTULA,
Appellant,
- and -
PAUMA PACIFIC INC. and
THE REGISTRAR OF TRADE-MARKS,
Respondents
REASONS FOR JUDGMENT
OF THE COURT
__________________
1 See Registrar of Trademarks v. Harris Knitting Mills Ltd. (1985), 4 C.P.R. (3d) 488 (FCA) and Gowling, Strathy and Henderson v. Suzy Shier Inc. (1991), 36 C.P.R. (3d) 221.
2 See Speigel Sohmer v. W.B. Hamilton Shoes (1860) Ltd. (1994) 45 C.P.R. (3d) 494.