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08 May 2007

Inquiry into adoption and use of official marks should be made

In the context of a recent judicial review proceeding, the Federal Court of Canada has suggested that the registrar of trademarks should conduct an inquiry into whether official marks have been adopted and used prior to publication of the notices in the Trademarks Journal. Under current practice, unsworn statements that official marks have been adopted and used in Canada are viewed as sufficient evidence.

26 April 2007

Jurisdiction to allow application amendments during oppositions upheld

In Lending Tree LLC v Lending Tree Corp, the Canadian Federal Court of Appeal has upheld the Opposition Board's decision to allow Lending Tree Corp to amend its application to register the mark LENDING TREE during an opposition proceeding against that mark. The court concluded that the Opposition Board had jurisdiction to allow the amendment.

19 April 2007

Use for services other than ticket sales fails to save CHEAP TICKETS

In Emall.ca Inc v Cheap Tickets and Travel Inc, the Federal Court of Canada has ordered the expungement of a CHEAP TICKETS word mark and a CHEAP TICKETS AND TRAVEL device mark. The court held that the marks were descriptive and they could not be 'saved' by the fact that certain of the services performed would not involve issuing tickets.

03 April 2007

CUVÉE IMPERIALE BERLUCCHI saved from expungement

The Federal Court of Canada has reversed a decision of the registrar of trademarks to expunge the CUVÉE IMPERIALE BERLUCCHI trademark for sparkling wines. The court found that the differences between the mark used and the mark registered were not sufficient to conclude that the mark had not been used within the meaning of the Trademarks Act.

22 March 2007

OMEGA mark amendment request denied

In Omega Engineering Inc v Omega SA, the Federal Court of Canada has refused Omega Engineering Inc's request to amend the statement of goods of Omega SA's validly registered trademark. The decision reaffirms the protection and presumptions afforded to a trademark registered under the Canadian Trademarks Act.

20 February 2007

Official marks open only to Canadian entities

The Federal Court of Appeal of Canada has confirmed that in order for a public authority to qualify for official mark protection in Canada, the public authority must be Canadian. Previously, any public authority, regardless of nationality, was entitled to the benefit of official mark protection.

15 February 2007

TINT KING mark resurrected after owner's death

In Tint King of California Inc v Registrar of Trademarks, the Federal Court of Canada has allowed, in part, an appeal from a decision by the registrar of trademarks that expunged the trademark TINT KING from the register. The court found that although the evidence filed was not sufficient to establish use of the mark in association with goods, it was sufficient to establish use in relation with services.

12 February 2007

Interlocutory review of opposition pleadings now possible

The Canadian Intellectual Property Office has recently issued a practice notice reversing a long-standing policy not to review the sufficiency of pleadings in a trademark opposition at an interlocutory stage. As a result of the new practice, an applicant may now challenge a statement of opposition prior to filing and serving its counter-statement by requesting an interlocutory ruling to strike out all or any portion of the opponent's pleadings.

08 February 2007

New rules for opposition time limits mooted

The government of Canada has proposed amendments to the regulations pertaining to the time limits for preparing documents during opposition proceedings. Currently, these time limits are so short that it is standard practice to request extensions of time at every step of the proceeding. The proposed amendments aim to cut costs and paperwork by reducing the need for such time extensions.

22 January 2007

VISIBLE YOUTH cancellation incorrect, rules Federal Court

In Jagotec AG v Riches McKenzie & Herbert LLP, the Federal Court of Canada has overturned an Opposition Board decision to expunge the mark VISIBLE YOUTH. The court was satisfied that the evidence, in the form of affidavits, filed on appeal showed use of the trademark through sales of the relevant goods in Canada, in that such goods were sold in containers or packaging bearing the mark VISIBLE YOUTH.

18 January 2007

Taekwon-Do marks struck from register

In International Taekwon-Do Federation v Choi, the Federal Court of Canada has struck two trademarks from the Trademarks Register on the grounds that a fiduciary has no right to register, under his own name and for his own benefit, a trademark owned by the entity to which the fiduciary duties are owed.

15 December 2006

Survey evidence helps sway dismissal of NORDIC opposition

The Federal Court of Canada has dismissed an opposition action against the registration of the trademark NORDIC (and 'snowflake' design). The court stated that there was no likelihood of confusion with the earlier mark NORDIQUES and took into consideration survey evidence which showed that the majority of respondents associated the word 'Nordiques' with the name of Quebec City's now defunct ice-hockey team.

01 December 2006

Timely evidence could save mark holders from the opposition merry-go-round

A case before the Federal Court involving an opposition procedure demonstrates that an opponent would be wise to file evidence when it has the opportunity to do so, otherwise it will need to ensure that its evidence is of such probative significance that the court will review the opposition decision under appeal on 'a correctness', as opposed to 'clearly wrong', standard.

10 November 2006

Approach to affidavit evidence of use clarified

The Federal Court of Canada has confirmed that, in expungement proceedings, affidavit evidence of use of the mark at issue should not be open to more than one interpretation; "if it is, then the interpretation adverse to the interest of the party in whose interest the document was made should be adopted".

07 November 2006

Fairweather achieves aim in TARGET APPAREL appeal

The Federal Court of Canada has allowed an appeal against the trademark registrar's decision to cancel the mark TARGET APPAREL for clothing, even though the mark was not in use at the date that the cancellation proceedings were commenced. The court held that Fairweather Ltd had established a serious intention to resume use of the mark.