Cross-Canada Auto Body Supply (Windsor) Limited v. Hyundai Auto Canada, 2008 FCA 98

Date: 20080311

Docket: A-311-07

Citation: 2008 FCA 98

CORAM:       DESJARDINS J.A.

                        NOËL J.A.

                        TRUDEL J.A.

BETWEEN:

CROSS-CANADA AUTO BODY SUPPLY (WINDSOR) LIMITED,

CROSS-CANADA AUTO BODY SUPPLY (WEST) LIMITED

and

AT PAC WEST AUTO PARTS ENTERPRISE LTD.,

Appellants

(Applicants)

and

HYUNDAI AUTO CANADA, A DIVISION OF

HYUNDAI MOTOR AMERICA,

Respondent

(Respondent)

Heard at Montréal, Quebec, on March 11, 2008.

Judgment delivered from the Bench at Montréal, Quebec, on March 11, 2008.

REASONS FOR JUDGMENT OF THE COURT BY:                                                      NOËL J.A.

Date: 20080311

Docket: A-311-07

Citation: 2008 FCA 98

CORAM:       DESJARDINS J.A.

                        NOËL J.A.

                        TRUDEL J.A.

BETWEEN:

CROSS-CANADA AUTO BODY SUPPLY (WINDSOR) LIMITED,

CROSS-CANADA AUTO BODY SUPPLY (WEST) LIMITED

and

AT PAC WEST AUTO PARTS ENTERPRISE LTD.,

Appellants

(Applicants)

and

HYUNDAI AUTO CANADA, A DIVISION OF

HYUNDAI MOTOR AMERICA,

Respondent

(Respondent)

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Montréal, Quebec, on March 11, 2008)

NOËL J.A.

[1]               Given the question that was put to the applications judge by counsel for both parties, i.e. whether the trade-marks in issue were distinctive of the seller, Hyundai Canada, to the exclusion of the manufacturer, Hyundai Korea, or vice versa, we are satisfied that the trial judge committed no palpable or overriding error in concluding that the trade-marks were distinctive of Hyundai Canada.

[2]               Similarly, we see no basis for intervening in the applications judge’s conclusion that the appellants had failed to meet their burden of establishing that the “HMC Design” and “HD & Hyundai Design” trade-marks were abandoned. There was no palpable or overriding error in this regard.

[3]               The appeal will be dismissed with costs.

“Marc Noël”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-311-07

APPEAL FROM A JUDGMENT OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER DATED JUNE 1, 2007, DOCKET NO. T-1005-05.

STYLE OF CAUSE:                                                               CROSS-CANADA AUTO BODY SUPPLY (WINDSOR) LIMITED ET AL v. HYUNDAI AUTO CANADA, A DIVISION OF HYUNDAI MOTOR AMERICA

PLACE OF HEARING:                                                        Montréal, Quebec

DATE OF HEARING:                                                          March 11, 2008

REASONS FOR JUDGMENT OF THE COURT BY:       DESJARDINS J.A.

                                                                                                NOËL J.A.

                                                                                                TRUDEL J.A.

DELIVERED FROM THE BENCH BY:                            NOËL J.A.

APPEARANCES:

SOLICITORS OF RECORD: