Wing Wah Food Manufactory Products Inc. v. China Brands Food Products Inc., 2006 FCA 387

Date: 20061128

Docket: A-70-06

Citation: 2006 FCA 387

 

CORAM:       LINDEN J.A.

                        EVANS J.A.              

                        MALONE J.A.

 

BETWEEN:

WING WAH FOOD MANUFACTORY PRODUCTS INC.

 

Appellant

and

 

 

CHINA BRANDS FOOD PRODUCTS INC.

 

    Respondent

 

 

 

 

Heard at Toronto, Ontario, on November 28, 2006.

Judgment delivered from the Bench at Toronto, Ontario, on November 28, 2006.

 

REASONS FOR JUDGMENT OF THE COURT BY:                                    MALONE J.A.

 

Date: 20061128

Docket: A-70-06

Citation: 2006 FCA 387

 

CORAM:       LINDEN J.A.

                        EVANS J.A.              

                        MALONE J.A.

 

BETWEEN:

WING WAH FOOD MANUFACTORY PRODUCTS INC.

 

Appellant

and

 

 

CHINA BRANDS FOOD PRODUCTS INC.

 

    Respondent

 

 

 

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on November 28, 2006)

 

MALONE J.A.

[1]               This is an appeal from an order of Hansen J., a judge of the Federal Court dated November 28, 2005 (reported as 2005 FC 1611).  The Judge upheld a decision of the Trade-Marks Opposition Board (the Board) which permitted the respondent to register the trade-mark PEONY Brand & Design.

 

[2]               The principal issue before the Judge was whether the Board correctly decided that there was a transfer of business, including the rights in the trade-mark at issue from a partnership created in 1978 to the respondent corporation incorporated in 1986.  Reviewing on the basis of reasonableness simpliciter, the Judge determined that it was reasonable for the Board to find that China Brands Inc. was incorporated to take over the business of the partnership and that the evidence clearly established this.  Further, she concluded that the respondent’s failure to renew the registration of the name of the partnership under the Partnership Registration Act did not affect the existence of the partnership.  Rather, the question of whether a partnership existed or not was determined by the real intention of the parties as evidenced by their conduct taking into consideration all surrounding circumstances.

 

[3]               Considering the evidence as a whole, we are not persuaded that Hansen J. was wrong to conclude that the ­­­­Registrar’s findings on the basis of the evidence before him were not unreasonable.

 

[4]               The appeal should be dismissed with costs.

 

      “B. Malone”

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-70-06

 

APPEAL FROM THE ORDER OF THE HONOURABLE MADAM JUSTICE HANSEN DATED NOVEMBER 28, 2005, DOCKET NO. T-262-05

 

STYLE OF CAUSE:                                                              Wing Wah Food Manufactory Products Inc. v. China Brands Food Products Inc.

 

 

PLACE OF HEARING:                                                        Toronto, Ontario

 

 

DATE OF HEARING:                                                          November 28, 2006

 

 

REASONS FOR JUDGMENT

OF THE COURT BY:                                                           Linden, Evans & Malone JJ.A.

 

DELIVERED FROM THE BENCH BY:                            Malone J.A.

 

 

 

APPEARANCES:

 

Kenneth McKay	FOR THE APPELLANT
Mark Robbins	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Sim, Lowman, Ashton & McKay Toronto, Ontario	FOR THE APPELLANT
Bereskin & Parr Toronto, Ontario	FOR THE RESPONDENT

 

Date: 20061128

Docket: A-70-06

 

Toronto, Ontario, November 28, 2006

 

CORAM:       LINDEN J.A.

                        EVANS J.A.  

                        MALONE J.A.

BETWEEN:

WING WAH FOOD MANUFACTORY PRODUCTS INC.

 

Appellant

and

 

 

CHINA BRANDS FOOD PRODUCTS INC.

 

    Respondent

 

 

JUDGMENT

 

            The appeal is dismissed with costs.

                                                                                                                                                                                      “A. M. Linden”