Date:
20130109
Docket:
A-448-11
Citation:
2013 FCA 5
CORAM: PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
McCALLUM
INDUSTRIES LIMITED
Appellant
and
HJ
HEINZ COMPANY AUSTRALIA LTD.
Respondent
Heard
at Ottawa, Ontario, on January
9, 2013.
Judgment delivered from the Bench at Ottawa, Ontario, on January
9, 2013.
REASONS FOR JUDGMENT OF THE COURT
BY: PELLETIER J.A.
Date:
20130109
Docket:
A-448-11
Citation:
2013 FCA 5
CORAM: PELLETIER
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
McCALLUM
INDUSTRIES LIMITED
Appellant
and
HJ
HEINZ COMPANY AUSTRALIA LTD.
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at Ottawa, Ontario, on January 9, 2013)
PELLETIER
J.A.
[1]
This
is an appeal from a decision of the Federal Court (per Justice Pinard): 2011 FC
1216.
[2]
McCallum
Industries Limited applied under section 57 of the Trade-marks Act, R.S.C.
1985 c. T-13, to expunge the trade-mark “OX & PALM”, owned by HJ Heinz
Company Australia Ltd. The Federal Court dismissed the application.
[3]
McCallum
alleges that the Federal Court erred in three respects:
-Finding that McCallum lacked the standing to bring
an application under section 57 of the Trade-marks Act because it was
not a “person interested” under section 2 of the Act.
-Failing to find that Heinz’s trade-mark “OX &
PALM” was confusing with McCallum’s trade-mark “PALM & Device”.
-Finding that Heinz’s trade-mark “OX & PALM” was
distinctive.
[4]
In
argument before us, both parties agreed that the appellant was a “person
interested”within the meaning of subsection 57(1) of the Act. In light
of that admission, it is not necessary for us to address this question.
However, we should not be taken to endorse the Federal Court’s analysis of this
issue.
[5]
As
to the second and third alleged errors, many of McCallum’s submissions relate
to findings of fact and matters of factual appreciation, such as the weight to
be given to relevant factors. Here, the burden is on McCallum to demonstrate
palpable and overriding error – an error that is obvious and that will affect
the outcome of the matter. In our view, McCallum has not satisfied this
burden.
[6]
We
agree that in the course of its analysis, the Federal Court made a number of
errors. By way of example only, the Federal Court was not entitled to rely
upon the coexistence of the marks in the United States market in its
consideration of the surrounding circumstances. It would also have been preferable
if the Federal Court had more specifically addressed the issues of the relevant
dates in its reasons.
[7]
That
said, we are satisfied that there was sufficient evidence to support the
Federal Court’s conclusions of fact, law, and mixed fact and law. We have not
been persuaded that the Federal Court committed any palpable and overriding
error which would justify our intervention.
[8]
Accordingly,
the appeal will be dismissed with costs.
"J.
D.Denis Pelletier"
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-448-11
APPEAL
FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE PINARD DATED OCTOBER 26, 2011,
DOCKET NO. T-1702-10
STYLE OF CAUSE: McCallum
Industries Limited v. HJ Heinz Company Australia Ltd.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 9, 2013
REASONS FOR JUDGMENT
OF THE COURT BY: Pelletier, Dawson, Stratas JJ.A.
DELIVERED FROM THE
BENCH BY: Pelletier J.A.
APPEARANCES:
|
Marcus Gallie
Lisa
Reynolds
Jaimie
Bordman
|
FOR
THE APPELLANT
|
|
John S. Macera
Ahmed
Bulbulia
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Ridout & Maybee LLP
Ottawa, Ontario
|
FOR THE APPELLANT
|
|
Macera & Jarzyna LLP
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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