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Date: 19980224


Docket: T-1518-97

MONTREAL, QUEBEC, THIS 24th DAY OF FEBRUARY 1998

PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY

     In the matter of an application to expunge

     trademark registration No. TMA448,988 dated

     October 20, 1995 for the trademark "BELLA PASTA"

BETWEEN:

     MAISON DES PÂTES PASTA BELLA INC.

     Applicant

     AND

     OLIVIERI FOODS LIMITED

     Respondent

     ORDER AND REASONS FOR ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY

[1]      I am of the view that the applicant must fail on its motion to file additional evidence in support of its application to expunge trade-mark registration number TMA448,988 for the Respondent's trade-mark "BELLA PASTA".

[2]      I believe that it is important at the outset to bear in mind that the hearing of this application is scheduled for March 3, 1998 and that a court file should not be disturbed within a week from the hearing unless special circumstances warrant it.

[3]      The affidavit filed by the applicant in support of its originating notice of motion discloses the alleged use of the trade-name "PASTA BELLA" by the applicant and its predecessors in title.

[4]      Upon reading that affidavit, the affidavit filed by the applicant in support of the motion at bar as well as the transcript of its examination thereunder, I am of the view that the applicant would have discovered the evidence it now seeks to introduce had it not assumed that this evidence had been destroyed and had a thorough search of its files and those of its predecessors in title - predecessors which are all part of the Rizzuto Group of compagnies - been carried prior to the filing of its originating notice of motion. A thorough search would have avoided any delay in the first place.

[5]      In addition, I do not believe that this lack of proper search on the part of the applicant could be outweighed by any intrinsic value which this additional evidence may have (see Prouvost S.A. v. Munsingwear Inc., [1992] 2 F.C. 541 (C.A.) at 546).

[6]      As for the letters originating from past solicitors for the applicant, I am of the view, based on the evidence submitted, that the applicant was sufficiently aware of them prior to the filing of the originating notice of motion that they should have been included if the applicant intended to rely on them on the merits.

[7]      For these reasons, this application is dismissed with costs.

Richard Morneau

     Prothonotary

MONTREAL, QUEBEC

February 24, 1998

     FEDERAL COURT OF CANADA

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:

STYLE OF CAUSE:

T-1518-97

MAISON DES PÂTES PASTA BELLA INC.

     Applicant

AND

OLIVIERI FOODS LIMITED

     Respondent

PLACE OF HEARING:Montreal, Quebec

DATE OF HEARING:February 23, 1998

ORDER AND REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF ORDER AND REASONS FOR ORDER:February 24, 1998

APPEARANCES:

Consolato Gattuso for the Applicant

Cheryl Morton

Mark K. Evans for the Respondent

SOLICITORS OF RECORD:

Consolato Gattuso for the Applicant

Cheryl Morton

Mitchell Gattuso

Montreal, Quebec

Mark K. Evans for the Respondent

Smart & Biggar

Toronto, Ontario


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