Kelendji v. Diplomat Fullhalter Gasellschaft Kurz & Rauchle Gmbh & Co., 2001 FCT 425

Date: 20010502

Docket: T-1383-97

Neutral Citation: 2001 FCT 425

MONTRÉAL, QUEBEC, THE 2^nd DAY OF MAY, 2001

PRESENT: RICHARD MORNEAU, PROTHONOTARY

            In the matter of an order under section 57 of the Trade-marks Act striking out an entry in the register of the trade-mark DIPLOMAT filed by Diplomat Fullhalter Gasellschaft Kurz & Rauchle GMBH & Co. KG, and registered as number TMA 380,351 on February 21, 1991, in accordance with sections 17(2), 18(1)(a) and 57 of the Trade-marks Act

Between:

                    FOUAD KELENDJI carrying on business under the firm name

                                        DIPLOMATE WATCH OF CANADA

                                                                                                                                Applicant

                                                                    AND

                                DIPLOMAT FULLHALTER GASELLSCHAFT

                                      KURZ & RAUCHLE GMBH & CO. KG

                                                                                                                            Respondent

Motion by the applicant seeking:

1.         An order extending the 30-day period that the applicant had for appealing the judgment herein of the Federal Court of Canada, Trial Division, dated February 23, 2001, and granting leave to the applicant to bring an appeal within 15 days from the date of this judgment or within such other period as the Court may fix;

2.         Such further and other order or relief as this Honourable Court may deem appropriate under the circumstances;

3.         Judgment without costs, unless opposed by the Respondent.

                                      REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]                CONSIDERING that it is possible to view the Applicant's actions after March 22, 2001, while limited, as expressing, although minimally, an intention to appeal the trial judgment dated February 23, 2001, before March 26, 2001;

[2]                CONSIDERING that the period in question is only a few days, and is therefore not excessive;

[3]                CONSIDERING that the Respondent has not formally opposed this motion;

[4]                CONSIDERING that it does not seem that the Respondent would be prejudiced by an extension of the appeal period in the circumstances;

[5]                CONSIDERING that the applicant appears to have an arguable case;

[6]                Accordingly, the applicant is hereby granted leave to file a notice of appeal from the order of this Court dated February 23, 2001, within 15 days of the date of this order, costs in the cause.

Richard Morneau                              

                                        Prothonotary

Certified true translation

Mary Jo Egan, LLB

                                           FEDERAL COURT OF CANADA

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:

STYLE OF CAUSE:

T-1383-97

In the matter of an order under section 57 of the Trade-marks Act striking out an entry in the register of the trade-mark DIPLOMAT filed by Diplomat Fullhalter Gasellschaft Kurz & Rauchle GMBH & Co. KG, and registered as number TMA 380,351 on February 21, 1991, in accordance with sections 17(2), 18(1)(a) and 57 of the Trade-marks Act

Between:

FOUAD KELENDJI carrying on business as DIPLOMATE WATCH OF CANADA

                                                                      Applicant

AND

DIPLOMAT FULLHALTER GASELLSCHAFT KURZ & RAUCHLE GMBH & CO. KG

                                                                  Respondent

PLACE OF HEARING:Montréal, Quebec

DATE OF HEARING:April 9, 2001

REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY

DATE OF REASONS FOR ORDER:May 2, 2001

APPEARANCES:

SOLICITORS OF RECORD: