Date: 20040112
Docket: T-599-03
Citation: 2004 FC 33
Montréal, Quebec, the 12th day of January 2004
Present: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
ECLIPSE INTERNATIONAL FASHIONS CANADA INC.
Applicant
and
SHAPIRO COHEN
Respondent
Motion by the applicant under Rule 369 for an order by the Court pursuant to Rule 312(a) of the Federal Court Rules, 1998, to allow the applicant to file a supplementary affidavit, namely the affidavit of Tannis Taylor dated October 30, 2003, and Exhibit A-18 in support of that affidavit.
[Rules 312(a) and 369 of the Federal Court Rules, 1998]
REASONS FOR ORDER AND ORDER
[1] I am satisfied from reading the records filed by the parties in connection with the motion at bar that the Court should authorize the service and filing of Ms. Taylor's affidavit, dated October 30, 2003.
[2] In my opinion, the applicant provided a reasonable justification for why the decision of the Registrar of Trade-Marks on February 27, 2003, did not lead it, in its basic affidavit under Rule 306, to provide further justification of its use of the trade-mark at issue, and that it is only the position taken by the respondent in paragraph 23 of the respondent's record which now leads the applicant to feel the need to clarify or provide further justification of the actual use of the trade-mark "Eclipse".
[3] I also feel that this affidavit by Ms. Taylor will add to and clarify the evidence contained in Mr. Khanna's affidavit dated May 14, 2003. In that respect, Ms. Taylor's affidavit will serve the interests of justice, could possibly assist the Court on the merits and in the circumstances is not likely to cause the respondent any detriment.
[4] This motion by the applicant is accordingly allowed, with costs in the cause. Consequently, on or before January 22, 2004, the applicant must serve and file Ms. Taylor's affidavit dated October 30, 2003, and the documentation in support thereof.
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"Richard Morneau"
Prothonotary
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Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-599-03
STYLE OF CAUSE: ECLIPSE INTERNATIONAL FASHIONS CANADA INC.
Applicant
and
SHAPIRO COHEN
Respondent
WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: January 12, 2004
WRITTEN SUBMISSIONS:
Claudette Dagenais FOR THE APPLICANT
Nadia Sabik
Chantal Bertosa FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dagenais & Associés FOR THE APPLICANT
Montréal, Quebec
Shapiro Cohen FOR THE RESPONDENT
Ottawa, Ontario
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