Date: 19990830
Docket: T-557-98
IN THE MATTER OF:Sections 38 and 56 of the Trade-marks Act (R.S.C., 1985, c. T-13)
IN THE MATTER OF:The opposition of MOTTE ET PORISSE and COMPTOIR TEXTILE DE ROUBAIX - OUVRAGES PETIT FAUNE to the registration by ANNIE CHÉLIN of a trade-mark "OUVRAGES PETIT FAUNE ( & design)", the subject of application TMO 669,705;
IN THE MATTER OF:A decision made for the Registrar of Trade-marks on January 29, 1998;
BETWEEN: MOTTE ET PORISSE
Appellant
AND
ANNIE CHÉLIN
Respondent
ASSESSMENT OF COSTS - REASONS
MICHELLE LAMY, ASSESSMENT OFFICER:
[1] This concerns an appeal from a decision of the Registrar of Trade-marks. On May 3, 1999, Madame Justice Tremblay-Lamer allowed the appeal and awarded party and party costs against the respondent to be assessed in accordance with the highest unit of Column III of Tariff B.
[2] The assessment was held on August 26 in the presence of Laurent Carrière, counsel for the appellant, as the respondent was never represented by counsel in this matter.
COUNSEL FEES
[3] The counsel fees claimed are the following:
| Item
1 4 4 6
13(a) 13(a) 14(a) 24 25 26 |
Assessable Service
Notice of appeal Motion for default judgment Requisition for hearing (R. 314) Appearance for hearing of motion for default judgment Preparation for hearing Preparation of written representations Counsel fee Travel by counsel to attend hearing Services after judgment Assessment of costs |
Column III /Units
7 4 4 3
5 7 3 5 1 6 |
[4] At the hearing, Mr. Carrière amended his bill of costs to request that the preparation of written representations be assessed under item 15 of the Tariff instead of item 13(a) for the maximum number of units, namely 7 units. The appellant is awarded this amendment and the counsel fees claimed under items 1 (7 units), 13(a) (5 units), 14(a) (3 units), 25 (1 unit) and 26 (6 units). The other services are assessed as follows:
-as the Court did not award costs to the appellant for the motion for default judgment, no costs are allowed under items 4 and 6;
-as the requisition for hearing filed pursuant to Rule 314 cannot be considered a motion within the meaning of Part VII of the Federal Court Rules, the claim under item 4 is denied;
-the counsel fees claimed under item 24 are denied as the Court gave no direction to this effect. Mr. Justice Denault's decision in Sim & McBurney v. Buttino Investments Inc., F.C., No. A-234-96, November 24, 1997, is clear on this point.
[5] In light of the above, the appellant's counsel fees total $3,335.73, or $2,900 plus taxes.
DISBURSEMENTS
[6] At the hearing, Mr. Carrière filed the affidavit of Hugh Mansfield which established that the expenses set out in the bill of costs were in fact incurred by the appellant. Accordingly, these expenses in the amount of $1,612.24, including taxes, are allowed as claimed as well as the amount of $100 paid into the Registry of this Court pursuant to Tariff A.
[7] The appellant's costs for this matter are accordingly set at $5,047.97. A certificate is issued for this amount.
(signed)
MICHELLE LAMY
ASSESSMENT OFFICER
MONTRÉAL, QUEBEC
August 30, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990830
Docket: T-557-98
IN THE MATTER OF:Sections 38 and 56 of the Trade-marks Act (R.S.C., 1985, c. T-13)
IN THE MATTER OF:The opposition by MOTTE ET PORISSE and COMPTOIR TEXTILE DE ROUBAIX - OUVRAGES PETIT FAUNE to the registration by ANNIE CHÉLIN of a trade-mark "OUVRAGES PETIT FAUNE ( & design)", the subject of application TMO 669,705;
IN THE MATTER OF:A decision made for the Registrar of Trade-marks on January 29, 1998;
BETWEEN:
MOTTE ET PORISSE
Appellant
AND
ANNIE CHÉLIN
Respondent
ASSESSMENT OF COSTS - REASONS
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-557-98
STYLE OF CAUSE:
IN THE MATTER OF:Sections 38 and 56 of the Trade-marks Act (R.S.C., 1985, c. T-13)
IN THE MATTER OF:The opposition by MOTTE ET PORISSE and COMPTOIR TEXTILE DE ROUBAIX - OUVRAGES PETIT FAUNE to the registration by ANNIE CHÉLIN of a trade-mark "OUVRAGES PETIT FAUNE ( & design)", the subject of application TMO 669,705;
IN THE MATTER OF:A decision made for the Registrar of Trade-marks on January 29, 1998;
BETWEEN: MOTTE ET PORISSE
Appellant
AND
ANNIE CHÉLIN
Respondent
PLACE OF ASSESSMENT:Montréal, Quebec
DATE OF ASSESSMENT:August 26, 1999
REASONS OF M. LAMY, ASSESSMENT OFFICER
DATE OF REASONS : August 30, 1999
APPEARANCE:
Laurent Carrière For the appellant
SOLICITOR OF RECORD:
LÉGER, ROBIC, RICHARD, s.e.n.c. For the appellant
Montréal, Quebec