Date: 19990129
Docket: T-2756-96
BETWEEN:
ADVANCE MAGAZINE PUBLISHERS INC.
Appellant
(Opponent)
- and -
MASCO BUILDING PRODUCTS CORP.
Respondent
(Applicant)
-and-
THE REGISTRAR OF TRADE-MARKS
REASONS FOR ORDER
RICHARD A.C.J.:
Nature of the proceeding
- [1] This is an appeal pursuant to section 56 of the Trade-marks Act, R.S.C. 1985. c. T-13, (the Act) from the decision of the Chairman of the Trade-Marks Opposition Board dated October 16, 1996 whereby he rejected the opposition of the appellant to Trade-mark Application 686,121 for VOGUE.
Background
| [2] On July 18, 1991, the respondent, Masco Building Products Corp. ( Masco ), filed Canadian Trade-mark Application No. 686,121 for registration of the trade mark VOGUE, in association with door locks and lock hardware. The application was based on proposed use of the trade-mark in Canada. Masco"s trade mark was approved by the Trade-marks Office and advertised for opposition purposes in the Trade-marks Journal of April 1, 1992. |
| [3] On July 29, 1992, the appellant filed a statement of opposition alleging that Masco"s application was not in compliance with section 30(i) of the Act, that Masco"s trade mark was not registrable in view of section 12(1)(d) of the Act, and that Masco was not the person entitled to registration in view of section 16 of the Act as its trade mark was confusing with certain of the Appellant"s registered and unregistered trade marks covering magazines, books, and paper patterns. |
| [4] On the evidence adduced before the Opposition Board, the Chairman of the Opposition Board rendered a decision on October 16, 1996, rejecting the appellant"s opposition. |
| [5] The grounds raised in the Statement of Opposition which were argued at the opposition hearing were: |
| (1) The trade mark is confusing with the registered trade marks of the appellant and, therefore, not registrable (contrary to subsection 12(1)(d)). |
| (2) The respondent was not the party entitled to registration as, at the date of the application, the trade mark was confusing with the appellant"s trade marks which had been used to such an extent that the trade marks were very well known and indeed famous in Canada. |
| [6] At the opposition hearing, the appellant filed an affidavit of Normand Waterman, the Associate Publisher of VOGUE magazine. In his affidavit, Mr. Waterman provided the following evidence: |
| (1) VOGUE magazine has been published continuously by the appellant and its predecessors since at least 1892. |
| (2) The current circulation in Canada of VOGUE magazine, both through subscription and newsstand sales, averages well over one million copies per issue. |
| (3) Since 1984, the appellant has generated in excess of $65 million annually in gross advertising revenues from advertisers who place advertisements in VOGUE magazine. |
| (4) A typical VOGUE magazine principally contains articles, features and advertising relating to high fashion. However, VOGUE magazine also includes, on a regular basis, articles and features relating to interior decoration. |
| (5) VOGUE magazine includes a monthly feature entitled "Vogue Style-Living" which deals with interior decorating and painting. |
| (6) The appellant also has used and registered the trade mark VOGUE in association with sewing patterns. Use of the trade mark in association with those wares commenced at least as early as August, 1927. |
| (7) The appellant has also published a magazine entitled VOGUE DECORATION, a magazine dealing almost exclusively with interior design and interior decoration, since at least 1985. |
| (8) VOGUE DECORATION magazine is sold by subscription and on newsstands. The circulation of this magazine in the years 1989 through 1992 exceeded 10,000 copies per year. |
| (9) VOGUE DECORATION magazine encompasses articles, features and advertisements relating to interior design and interior decoration. |
| [7] Mr. Waterman was not cross-examined on his affidavit. |
| [8] The respondent"s evidence consisted of the results of searches made of the Trade-mark register, telephone book directories and trade name/corporate name registers in Canada and the United States. There was no evidence from any representative of the respondent itself establishing any use of the trade mark VOGUE, the nature of the wares intended to be sold in association with the trade mark, or the nature of the respondent"s intended trade in those wares. The appellant was therefore unable to cross-examine the respondent as to why the trade mark VOGUE was chosen. |
| [9] Each of the respondent"s affiants were cross-examined. Each of them testified that: |
| (1) They were not asked to investigate whether any of the marks or names identified were in use in Canada. |
| (2) They were not aware of any use of the marks and names they located in their searches. |
| [10] On this appeal, the respondent filed a further affidavit which updated the trade mark searches that were done earlier. The respondent also filed a further affidavit of the person who conducted further searches of telephone directories, on-line searches and Internet searches. |
| [11] Apart from attaching samples of the use of the trade mark VOGUE BRA in association with lingerie, and the use of the trade name VOGUE BRA INC., the affidavit disclosed no use of any trade-mark or trade name referred to in her affidavit and disclosed no effort made to uncover any facts from which it could be concluded that any of the marks and names located by her in her searches were in use in Canada. |
| [12] Did the Registrar err in allowing the respondent"s application over the appellant"s opposition. |
| [13] Based upon proper interpretation of the evidence and law, is the trade mark VOGUE as applied for by the respondent in association with door locks and lock hardware confusing, within the meaning of the Act, with the appellant"s VOGUE trade mark. |
| [14] Pursuant section 16(3) of the Act, is the respondent entitled to register the trade mark VOGUE in view of the appellant"s prior use of the trade marks VOGUE and VOGUE DECORATION . |
| [15] Pursuant section 12(1)(d) of the Act, is the applied for trade mark confusing when considered along with the registered trade marks of the appellant, which are as follows: |
| VOGUE - in association with magazines and patterns; |
VOGUE DECORATION - in association with magazines.
Standard of review
| [16] Section 56 of the Trade-marks Act reads in part as follows: |
| Appeal
56.(1) An appeal lies to the Federal Court from any decision of the Registrar under this Act within two months from the date on which notice of the decision was dispatched by the Registrar or within such further time as the Court may allow, either before or after the expiration of the two months.
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Appel
56.(1) Appel de toute décision rendue par le registraire, sous le régime de la présente loi, peut être interjeté à la Cour fédérale dans les deux mois qui suivent la date où le registraire a expédié l"avis de la décision ou dans tel délai supplémentaire accordé par le tribunal, soit avant, soit après l"expiration des deux mois.
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[...]
| Additional evidence
(5) On an appeal under subsection (1), evidence in addition to that adduced before the Registrar may be adduced and the Federal Court may exercise any discretion vested in the Registrar. R.S., c. T-10, s. 56; R.S., c. 10(2nd Supp.), s. 64.
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Preuve additionnelle
(5) Lors de l"appel, il peut être apporté une preuve en plus de celle qui a été fournie devant le registraire, et le tribunal peut exercer toute discrétion dont le registraire est investi. S.R., ch. T-10, art. 56; S.R., ch. 10(2e suppl.), art. 64.
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| [17] Section 56 of the Act provides for an unfettered statutory right of appeal from decisions of the Board. |
| [18] In my view, the appropriate standard of review is set out by Mr. Justice Heald in Labatt Brewing Co. v. Molson Breweries (1996), 113 F.T.R. 39 (F.C.T.D) at p. 43- 44. Mr. Justice Heald examined the role of the Court on appeal : |
| The role of the Court on an appeal pursuant to section 56 of the Act was aptly stated by Justice Strayer in McDonald"s Corp. v. Silcorp Ltd. (1989), 24 C.P.R. (3d) 207 (F.C.T.D.) at page 210; affirmed 139 N.R. 319, 41 C.P.R. (3d) 67 (F.C.A.): |
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| It seems clear that in opposition proceedings where the issue is essentially one of fact concerning confusion or distinctiveness the decision of the registrar or the Board represents a finding of fact and not the exercise of discretion. Therefore the court should not impose upon itself the same degree of restraint, in reviewing that decision, as it would if the decision were essentially an exercise of discretion. It is thus free to review the facts to determine whether the decision of the registrar or Board was correct, but that decision should not be set aside lightly considering the expertise of those who regularly make such determinations: see Benson & Hedges (Canada) Ltd. v. St. Regis Tobacco Corp. (1968), 57 C.P.R. 1 at p. 8, 1 D.L.R. (3d) 462, [1969] S.C.R. 192">[1969] S.C.R. 192 at pp. 199-200 (S.C.C.). While different panels of the Federal Court of Appeal have variously expressed the duty of this court on appeal to be to determine whether the registrar has "clearly erred", or whether he has simply "gone wrong", it appears that it is the duty of a judge sitting on an appeal such as this to come to his own conclusion as to the correctness of the finding of the registrar. In doing that he must, however, take into account the special experience and knowledge of the registrar or the Board, and more importantly have regard to whether new evidence has been put before him that was not before the Board. |
|
| See also Clorox Co. v. E.I. Du Pont Nemours and Co. (1995), 64 C.P.R. (3d) 79 (F.C.T.D.). |
|
| Accordingly, in determining this appeal I shall be guided by the principles enunciated above. That is I must come to my own conclusion as to the correctness of the Registrar"s decision, however I must take into account the special experience and knowledge of the Registrar and the fact that no new evidence was adduced on this appeal that was not before the Registrar. |
|
Onus
| [19] The legal burden on the applicant is to establish that there would be no reasonable likelihood of confusion between the trade marks of the parties as at the relevant date. It is well established that the relevant date for assessing confusion under paragraph 12(1)(d) of the Act is the date of the Registrar"s decision. |
| [20] The appellant submits that the trade mark VOGUE is a strong trade mark which should be accorded an extended ambit of protection. Accordingly, the strength of the appellant"s trade mark imposes a heavier onus on the respondent to satisfy the registrar or the Court that the public would not likely be confused. |
The statutory criteria
| [21] Subsection 6(2) of the Act provides that a trade mark is confusing with another trade mark, if the use of both, in the same area, would be likely to lead to the inference that the wares associated with them are sold by the same person whether or not such wares are of the same general class. |
| [22] In determining the likelihood of confusion, regard is to be had to all the surrounding circumstances, including the specific matters set out in subsection 6(5) of the Act: |
| (a) the inherent distinctiveness of the trade marks and the extent to which they have become known; |
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| (b) the length of time the marks have been in use; |
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| (c) the nature of the wares; |
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| (d) the nature of the trade; and |
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| (e) the degree of resemblance between the marks in appearance or sound or in the idea suggested by them. |
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The decision of the chairman of the Opposition Board
| [23] In reaching his conclusion, the Chairman of the Opposition Board made the following findings: |
| The applicant"s trade mark VOGUE as applied to door locks and lock hardware, which I assume would include door handles, may suggest to some consumers that these wares have a stylish element to them. Consequently, I find that the applicant"s trade-mark possesses relatively little inherent distinctiveness as applied to its wares. Further, since no evidence has been furnished by the applicant relating to it having commenced use of its trade-mark VOGUE, I must assume that its proposed use mark has not become known to any extent in Canada. |
|
| As pointed out by Board Member Martin in Conde Nast Publications Inc. v. Gottfried Importing Co. Ltd. et al., 31 C.P.R. (3d) 26, at page 28, the opponent"s trade-mark VOGUE is not inherently strong. Likewise, the opponent"s trade-mark VOGUE DECORATION is suggestive of a magazine directed primarily to fashionable interior decoration and therefore possesses a limited degree of inherent distinctiveness. However, despite the inherent weakness of the word VOGUE, both of the opponent"s trade-marks VOGUE CAREER covering paper patterns and books and VOGUE HOMBRE as applied to magazines possess some measure of inherent distinctiveness when considered in their entireties. The Waterman affidavit confirms, as was concluded by Mr. Martin in the Conde Nast case, that the trade-mark VOGUE has become well known in Canada in association with magazines. On the other hand, the opponent"s VOGUE DECORATION magazines have only been distributed in Canada by the opponent and its predecessor-in-title since 1985 and, as of the date of the Waterman affidavit, subscription and newsstand sales of the magazine were limited to approximately 10,000 copies per issue in Canada. Thus, the trade-mark VOGUE DECORATION has become known to only a limited extent in Canada. No evidence has been furnished by the opponent relating to its use of its trade-marks VOGUE CAREER or VOGUE HOMBRE and I assume that these marks have not become known to any extent in Canada. |
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| In view of the above, the extent to which the opponent"s trade-mark VOGUE and to a lesser extent its trade-mark VOGUE DECORATION have become known in association with patterns and magazines weighs in its favour in this opposition. Also, the length of use of the trade-marks at issue favours the opponent in respect of its trade-marks VOGUE and VOGUE DECORATION, the applicant"s trade-mark being based on proposed use in Canada. |
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| The applicant"s trade-mark VOGUE is identical to the opponent"s trade-mark VOGUE, as well as being very similar in appearance, sounding and ideas suggested to the opponent"s trade-mark VOGUE DECORATION, VOGUE CAREER and VOGUE HOMBRE. As a result, the only remaining criteria which the Registrar must consider under Section 6(5) of the Act, apart from any additional surrounding circumstances, are the nature of the wares of the parties and their respective channels of trade. In this regard, the applicant"s door locks and lock hardware bear no similarity to the opponent"s magazines, books and patterns. However, the opponent has argued that its VOGUE magazine includes a section on interior design and decoration under the heading "Vogue style" while the opponent"s VOGUE DECORATION magazine deals primarily with interior decoration and design, including articles and/or advertising concerning various products related to interior design. In a recent decision of the Opposition Board involving an opposition by the present opponent to an application to register the trade-mark LATEX VOGUE for paints [Advance Magazine Publishers Inc. V. Peintures M.P. (1973) Inc. , 66 C.P.R. (3d) 375, at pg. 379], I found that interior design and decoration might be perceived by the average consumer as being a logical extension of the traditional use of VOGUE in association with a magazine dealing with fashion and accessories. However, in the present opposition, I would not expect that either door locks or lock hardware would be wares which the "average consumer" would consider as being particularly relevant to interior design or decoration. |
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| As a further surrounding circumstance in respect of the issue of confusion, the applicant submitted evidence of the results of searches and investigations undertaken by Christopher Dejardin, Christine McCluskey and Susan Burkhardt. In response to the Dejardin affidavit, the opponent submitted the Burke affidavit. Having considered the Dejardin and Burke affidavits, it would appear that there are about seventeen registered trade-marks comprising or including the word VOGUE on the register and standing in the name or thirteen different owners. Considering the number of third party VOGUE marks disclosed by the Dejardin search and bearing in mind that the Burkhardt affidavit appears to confirm that at least two of the companies [Vogue Brassiere Inc. and Industries Vogue Ltée,] identified as registrants of the third party marks are carrying on business in Canada, I am prepared to accord at least some weight to the applicant"s state of the register evidence. On the other hand, the McCluskey affidavit attests to the results of a United States trade-mark search undertaken by the affiant. Absent evidence of marketplace use of any of the marks disclosed by the search, I am not prepared to give any weight to this evidence. |
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| In her affidavit, Ms. Burkhardt describes a computer search of companies which she conducted and has annexed to her affidavit the results of that search. As well, the affiant has annexed to her affidavit the results of a search of "Vogue" corporations through internal records maintained by the affiant"s employer, Gowling, Strathy & Henderson. These searches confirm the adoption of Vogue as a component of numerous corporate names in Canada although no evidence has been adduced by the applicant that any of these names have been brought to the attention of consumers in the marketplace or, indeed, that the names are in fact in use in Canada. Additionally, Ms. Burkhardt has annexed to her affidavit photocopies of pages from telephone directories for Vancouver, Toronto, Montreal and Ottawa which include listings for companies or businesses having the word "Vogue" in their name. In addition to confirming that "Vogue" has a surname significance and identifying owners of certain of the registered trade-marks uncovered by the Dejardin trade-mark search, the results of the telephone directory searches show that "Vogue" has been adopted as a component of trade or business names by about thirty businesses in the four cities noted above. Having regard to the number of corporate names and telephone directory listings uncovered by Ms. Burkhardt, and bearing in mind the results of the Dejardin search, I am prepared to conclude that the name and mark "Vogue" has been brought to the attention of consumers in Canada and that this is an important factor weighing in the applicant"s favour in this opposition. |
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| Even considering that the opponent"s trade-mark VOGUE is well known, the opponent"s evidence does not point to any connection between the applicant"s wares and the opponent"s magazines and patterns. Further, the applicant"s door locks and lock hardware do not fall within the area of interior design and decoration associated with the opponent"s VOGUE DECORATION magazine. Moreover, the applicant"s evidence relating to the existence of registered trade-marks comprising or including the word VOGUE, coupled with the evidence of the adoption of the word Vogue by a number of companies and businesses in Canada, supports the conclusion that consumers would be accustomed to seeing the mark or name VOGUE associated with the wares, services or businesses of third parties in the marketplace in Canada. As a result, I have concluded that the applicant has met the legal burden upon it in respect of the issue of confusion and have therefore rejected the remaining grounds of opposition. |
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| [25] On the hearing of this appeal, the appellant did not rely on VOGUE CAREER and VOGUE HOMBRE. |
Analysis
| [26] Three of the five factors in subsection 6(5) of the Act clearly favour the appellant, which leaves only paragraphs (c) and (d): the nature of the wares and the nature of the trade, respectively, to be considered. |
| [27] The evidence shows that the appellant"s trade mark VOGUE is well known in association with magazines and has acquired secondary meaning in connection therewith. However, there is no evidence that the respondent"s trade mark has been used in Canada. As a result, it has not become known at all. |
| [28] Furthermore, the evidence demonstrates that the VOGUE trade mark has been used in association with magazines for over 100 years. The VOGUE DECORATION trade mark has been used for over 10 years. |
| [29] The appellant"s well known trade mark VOGUE is identical to the trade mark for which the respondent seeks registration. |
| [30] With respect to the nature of the trade mark, the evidence is that the appellant"s magazine is sold to consumers by subscription and at newsstands. The respondent has filed no evidence concerning the nature of its intended trade, and its claimed monopoly is not limited in any way. Therefore, it is appropriate to presume that the monopoly sought by the respondent includes products sold to consumers through all conceivable channels of trade. |
| [31] The criteria outlined in subsection 6(5) of the Act need not be given equal weight. In each case of confusion, there may be justification for according greater significance to one criterion over another. |
| [32] As stated by Mr. Justice Rouleau: |
| In such cases the courts have held that the distinction between the wares and the nature of the trade of the two competing marks becomes less important. Certainly those factors are not conclusive of the issue of confusion; they are only incidental criteria to be regarded in ascertaining whether trade marks are confusing in the sense that they resemble each other so as to be likely to mislead the public. Accordingly, while the nature of the wares or the channels of trade in which the appellant and respondent are engaged are material and relevant to the issue of confusion they are not, in balance, determinative1. |
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| [33] A strong mark is entitled to a broad ambit of protection. |
| [34] As stated by Mr. Justice Joyal: |
| I should venture a further observation. It seems to me that the relationship between two opposing marks as regards the nature of the wares must bear a much more stringent test when a strong and historical trade mark is measured against a proposed mark. The strength of the mark is obviously its distinctiveness, i.e., a combination of vowels, syllables and sound which has an inherent quality that conjures a direct association not only with the specific wares which might otherwise be listed in the mark's registration, but with the proprietary image of all the several or multifarious operations of its owner. This, in my view, is the essence of the phrase "secondary meaning". I can do no better in finding support for this guiding principle than to cite the KODAK and the VOGUE cases reported Re Kodak Trade Mark, Eastman Photographic Materials Co., Ltd. v. Griffiths (John) Cycle Corp., Ltd. (1898), 15 R.P.C. 105, and Conde Nast Publications Inc. v. Gozlan Bros. Ltd. (1980), 49 C.P.R. (2d) 250, respectively. I will admit that no prior case resolved by the courts is ever completely on point. Nevertheless, in the case of such marks as KODAK, by the nature of its inherent distinctiveness, and of VOGUE, by reason of its acquired reputation as an arbiter of current fashions, courts have extended to them a much wider area of general protection than the narrower one of cameras on the one hand and a glossy magazine on the other2. |
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| [35] A trade mark which has become very well known across Canada and/or internationally is entitled to wide protection. Thus, in the Miss Universe, Inc. case3, the Federal Court of Appeal stated: |
| The stronger the mark is, the greater the ambit of the protection it should be accorded and the more difficult it will be for an applicant to discharge the onus. As noted by Mahoney J. (as he then was) in Carson v. Reynolds, a trade-mark may be: |
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| . . . so generally identified with [a person] that its use in association with anything else, however remote from entertainment services, would be confusing in the sense that its use in both associations would be likely to lead to the inference that all the wares and services, whatever they might be, emanated from [that person]. |
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| Examples abound, in the jurisprudence respecting opposition to registration of trade-marks, of the scope of protection to be afforded to strong marks. The same is true in infringement cases as well as in injunction cases where weaker marks have also successfully passed the test. |
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| [36] In addition, this Court, in a series of decisions4, has held that where a strong trade mark is in issue, the criteria identified in paragraphs 6(5)(c) and (d) of the Act (the nature of the wares, services or business and the nature of the trade) are not particularly determinative. |
| [37] In circumstances such as these, the Opposition Board is required to examine "the facts of this case on the assumption that the appellant's trade-mark was to be accorded a particularly wide scope of protection and that the burden imposed on the respondent to dispel any likelihood of confusion was particularly difficult to overcome"5. |
| [38] Where an opponent has a strong trade mark and the applicant has not led any evidence to dispel the connection between the products or services offered by the opponent and those offered by the applicant, in the sense that the public might infer that the applicant was approved, licensed or sponsored by the opponent, or that there was some business connection between the two parties, the applicant has failed to satisfy the onus upon it. |
| [39] In this case, there was evidence of a connection between the respondent"s wares (door locks) and the features, articles and advertisements found in the appellant"s VOGUE and VOGUE DECORATION magazines concerning interior decoration. |
| [40] In the absence of any evidence from the respondent concerning the nature of its wares and the respondent"s claimed monopoly, it is appropriate to presume that all kinds of door locks and lock hardware fall within the scope of the monopoly sought by the respondent, including high quality, stylish, decorative products such as those that are likely to be featured, advertised or written about in the appellant"s magazines. |
| [41] This is not a case, such as in the Pink Panther case6, where the products at issue were movies and beauty products and where there was a gaping divergence in the nature of the wares. |
| [42] In my view, the Chairman of the Opposition Board erred in saying that the use by the respondent of the mark VOGUE in association with door locks and lock hardware could not result in a likelihood of confusion with the well known appellant"s trade mark in the mind of the average consumer. |
| [43] The Opposition Board "seems to have ignored the fact that the respondent was a newcomer entering a field already extensively occupied by the appellant and borrowing in so doing the whole of a name already well-established in that very field by the appellant"7. |
| [44] As stated by Mr. Justice Décary in Miss Universe at page 626: |
| It was the duty of the respondent to select a name with care so as to avoid any confusion-as is required under the definition of "proposed trade-mark" in section 2 of the Act-and so as to avoid the appearance that he intended to jump on the bandwagon of an already famous mark. |
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| [45] In this appeal the Chairman of the Opposition Board emphasized the non-similarity of the wares, even when faced with a famous mark. There are many decisions where a famous mark has prevailed with respect to non-competing goods8. |
State of the Register
| [46] As noted by the Chairman of the Opposition Board, there are about seventeen registered trade marks comprising or including the word VOGUE on the register and standing in the name of thirteen different owners. |
| [47] The respondent further supplemented this evidence with additional registered or pending marks. |
| [48] This is not a case where, as in the Kellogg9 case, the trade mark was found to be weak and there was a significant number of third party registrations. |
| [49] There was no evidence of extended use of the identical trade mark in the marketplace. |
| [50] There was no evidence of actual use of the names listed in telephone directories, on the Internet or in corporate searches, only an invitation to draw such an inference from the listings. |
| [51] I accept that evidence of trade names and trading styles which incorporate use of the mark in telephone directories throughout Canada can lead to a reasonable inference that a number of these enterprises are in active business, although it is far from being determinative in this case. |
| [52] The weight of such evidence is not sufficient to limit the scope of protection to be afforded to a strong mark such as VOGUE. |
CONCLUSION
| [53] I find, in this case, that there is a nexus between the wares particularly where the marks are identical and the registered mark is a well-known mark. The applicant has not limited its use of the mark to products which would be foreign to the ambit of protection that the VOGUE mark now has. |
| [54] The appeal is allowed, with costs payable to the appellant, and the Registrar is directed to act accordingly. |
____________________________
Associate Chief Justice
Ottawa, Ontario
January 29, 1999
__________________
1 Leaf Confections Ltd. v. Maple Leaf Gardens Ltd. (1986), 7 F.T.R. 72 (F.C.T.D.).
2 Polysar Ltd. v. Gesco Distributing Ltd. (1985), 6 C.P.R. (3d) 289 (F.C.T.D.).
3 Miss Universe, Inc. v. Dale Bohna, [1995] 1 F.C. 614, at p.622.
4 Infra, note 1 and 2. Beverley Bedding & Upholstery Co. v. Regal Bedding & Upholstery Ltd. (1980), 47 C.P.R. (2d) 145.
5 Infra, note 4 at p.262 (per Décary J.A).
6 United Artists v. Pink Panther Beauty Corp., [1998] 3 F.C. 534. (F.C.A.); Application for Leave to Appeal granted by the Supreme Court of Canada on November 19, 1998.
7 Ibid, p.262 (per Décary J.A.).
8 Conde Nast Publications Inc. v. Gozlan Brothers Ltd. (1980), 49 C.P.R. (2d) 250. (F.C.T.D.)
9 Kellogg Salada Canada Inc. v. Maximum Nutrition Ltd. et al. (1987), 9 F.T.R. 136; reversed by the Federal Court of Appeal in [1992] F.C. 442.
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