Date: 20010123
Docket: A-54-99
Matter involving sections 57 and 58
of the Trade-Marks Act, R.S.C. 1985, c. T-13
CORAM: DESJARDINS, J.A.
DÉCARY, J.A.
LÉTOURNEAU, J.A.
BETWEEN:
JEAN PATOU INC.
Appellant
- and -
LUXO LABORATORIES LIMITED
Respondent
Hearing held in Ottawa, Ontario, Tuesday, January 23, 2001.
Judgment pronounced at the hearing in Ottawa, Ontario, Tuesday, January 23, 2001.
REASONS FOR JUDGMENT OF THE COURT: ALICE DESJARDINS J.A.
Date: 20010123
Docket: A-54-99
Matter involving sections 57 and 58
of the Trade-Marks Act, R.S.C. 1985, c. T-13
CORAM: DESJARDINS, J.A.
DÉCARY, J.A.
LÉTOURNEAU, J.A.
BETWEEN:
JEAN PATOU INC.
Appellant
- and -
LUXO LABORATORIES LIMITED
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing, Tuesday, January 23, 2001)
DESJARDINS J.A.
[1] This is an appeal from a decision reported at [1998] F.C.J. No. 1910 (per Lutfy J., as he then was), in which the trial judge dismissed the appellant's application to strike out under subsection 57(1) of the Trade-Marks Act, R.S.C. 1985, c. T-13 in opposition to the trade mark BOOSTER, of which the respondent is the registered owner.
[2] The trial judge held that the trade mark BOOSTER did not give a clear description of the character or quality of the respondent's wares within the meaning of paragraph 12(1)(b) of the Act, that the trade mark was distinctive of the respondent's wares and that it had not been abandoned through non-use. In view of the evidence on the record, we agree with the trial judge's findings.
[3] In regard to the appellant's alternative application, that the registration of the trade mark in the register be altered by the addition of words designed to restrict it to the "[Translation] hairdressing establishments market", we are of the opinion that the trial judge did not err in any way in dismissing this application. Even assuming, without deciding, that subsection 57(1) of the Act could allow the kind of alteration requested by the appellant, the circumstances in this case and the evidence did not warrant it.
[4] This appeal will be dismissed with costs.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: A-54-99
STYLE: Jean Patou Inc.
- and -
Luxo Laboratories Limited
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 23, 2001
REASONS FOR JUDGMENT OF: Desjardins J.A. pronounced at the hearing
January 23, 2001
DATED: January 23, 2001
APPEARANCES:
Bruno Barrette for the appellant
Kenneth D. McKay for the respondent
SOLICITORS OF RECORD:
Brouillette, Charpentier, Fortin
Montréal, Quebec for the appellant
Sim, Hughes, Ashton & McKay
Toronto, Ontario for the respondent