Date: 19991013
Docket: T-740-99
OTTAWA, ONTARIO, OCTOBER 13, 1999
BEFORE THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
BETWEEN:
Appellant
- and -
HOFBAUER ASSOCIATES
Respondent
O R D E R
The appeal is allowed.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19991013
Docket: T-740-99
BETWEEN:
Appellant
- and -
HOFBAUER ASSOCIATES
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an appeal of a decision dated February 26, 1999 by the Registrar of Trade Marks at the Trade-Marks Office ordering the expungement of registered trade-mark TMA 333,572 as stipulated by subsection 45(4) of the Trade Marks Act1.
[2] The Appellant seeks an order allowing the appeal and reversing the decision of the Registrar to expunge the trade-mark, thereby, maintaining the registered trade-mark on the registry of trade-marks.
[3] The Appellant, Hockey Canada, is the owner of TMA 333,572. The trade-mark, Maple Leaves design (the "Trade-mark"), is registered for use in association with the organization and operation of Canadian national sport teams participating in international and other hockey games and tournaments.
[4] The Registrar of Trade-marks began expungement proceedings on October 6, 1998 after a request by the Respondents, Hofbauer Associates.
[5] To maintain the Trade-mark on the Registry, Hockey Canada had to submit evidence of use in Canada of the Trade-mark in association with its services. This use had to occur between October 6, 1995 and October 6, 1998. On February 26, 1999, the Registrar ordered the expungement of the Trade-mark as no such evidence was filed.
[6] Hockey Canada is now appealing this decision on the basis that Hockey Canada can now provide new evidence pertaining to the use of the Trade-mark in Canada in association with Hockey Canada during the period specified.
[7] I agree with Hockey Canada that there is significant new evidence in this case which allows the Court to exercise its discretion and consider the matter de novo.
[8] I am satisfied that the evidence establishes that the Trade-mark was used by its registered owner, Hockey Canada, in the performance of services in Canada for which the Trade-mark was registered during the material period of October 6, 1995 to October 6, 1998. Mr. Robison"s affidavit established that, as part of Hockey Canada"s corporate identity, the Trade-mark was featured on business cards, cheques, letterhead and envelopes during that period.
[9] As well, I am satisfied that the Trade-mark was used in association with the services by Hockey Canada"s Licensee, CHA, during the material period. More particularly, the evidence shows that it was used in relation with the organisation of the Canadian National team"s participation in several Spengler Cups during that period. Mr. Robison"s affidavit confirms that the organisation was done from CHA headquarters in Canada.
[10] [11] For these reasons, the appeal is allowed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
October 13, 1999.
__________________
1 R.S.C. 1985, c. T-13.
Email this Content