Tension 10 Inc. v. Canada (Registrar of Trade-marks), 2005 FC 711

                                                                                                                                  Date: 20050517

                                                                                                                               Docket: T-472-05

Citation: 2005 FC 711

Vancouver, British Columbia, May 17, 2005

PRESENT:      MR. JUSTICE BLAIS

BETWEEN:

TENSION 10 INC.

Applicant

and

THE REGISTRAR OF TRADE-MARKS

and TENSION CLOTHING INC.

Respondents

REASONS FOR ORDER AND ORDER

[1]         There are two motions by the respondent and one by the applicant before the Court.

[2]         The first asked that the notice of application for costs alone be dismissed, since the applicant has meanwhile corrected the deficiencies alleged in the motion.

[3]         The applicant suggests that this request be dismissed; however, the affidavit in support of its reply is signed by the same attorney who made the submissions, contrary to rule 82 of the Court Rules, as the respondent's counsel pointed out.

[4]         In the circumstances, the Court allows the motion for costs alone, which it establishes at $800, payable immediately.

[5]         The second is a motion for, once again, the dismissal of the notice of application because the applicant failed to serve and file the affidavits in support of its application under rule 306 within 30 days of filing its notice of application.

[6]         The Court has examined the documents filed by both parties and finds, once again, that the affidavit in support of the applicant's reply is signed by itself and that it was expecting to make arguments on it, notwithstanding rule 82 of the Court Rules.

[7]         It must be conceded that the applicants' counsel have not given all the requisite attention to this case, which is fraught with flaws and procedural errors.

[8]         Notwithstanding the negligence of the applicant's successive counsel, the Court is unable to find, however, that the applicant has not manifested its clear desire to continue in this case; on the contrary.

[9]         It is imperative that the applicant's counsel give this case all the attention it merits, especially since they initiate it.

[10]       The Court does not intend to allow the motion, but the applicant will be required to pay the costs established by the Court at $500.

[11]       However, the Court is disposed to allow the request for an extension of time, presented by the applicant in its reply, in order to file the affidavits that it intends to use in support of its application. To this effect, the applicant will have 20 days from the date of this order to do so.

[12]       It is expected that the applicant's counsel will in future avoid filing one or more affidavits under his own signature, if he intends to present argument to the Court based on that or those affidavits.

[13]       The parties will have to display greater co-operation in the future, on both sides, in regard to the further steps to come in this case.

[14]       By consent, the applicant's third motion, for an extension of time, will simply be withdrawn, in view of the present order and also in order to avoid any additional costs for the parties.

ORDER

For these reasons,

THE COURT ORDERS that:

(a)         The motion by the respondent Tension Clothing Inc., filed on April 6, 2005, is allowed for costs only, which are established by the Court at $800, payable immediately to the respondent by the applicant Tension 10 Inc.;

(b)         The motion by the respondent Tension Clothing Inc., filed on April 25, 2005, is dismissed; however, costs established by the Court at $500 will be payable to the respondent by the applicant Tension 10 Inc.;

(c)         The motion by the applicant, filed on May 12, 2005, is withdrawn from the record by consent;

(d)         The applicant will have to file the affidavits it intends to use in support of its application no later than 20 days after the date of this order.

                          "Pierre Blais"

                                Judge

Certified true translation

K. Harvey

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            T-472-05

STYLE:                                                TENSION 10 INC.

and

THE REGISTRAR OF TRADE-MARKS

and TENSION CLOTHING INC.

PLACE OF HEARING:                      Vancouver, B.C.

DATE OF HEARING:                        May 16, 2005

REASONS FOR JUDGMENT:        MR. JUSTICE BLAIS

DATED:                                              May 17, 2005

APPEARANCES:

Vanna Vong                                           FOR THE APPLICANT

Paul Smith                                             FOR THE RESPONDENT

TENSION CLOTHING INC.

SOLICITORS OF RECORD:

Audi Gozlan & Associates                     FOR THE APPLICANT

Paul Smith Intellectual

Property Law                                        FOR THE RESPONDENT

TENSION CLOTHING INC.