Docket: A-3-16
Citation:
2017 FCA 170
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CORAM:
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WEBB J.A.
SCOTT J.A.
WOODS J.A.
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BETWEEN:
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U-HAUL
INTERNATIONAL INC.
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Appellant
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and
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U BOX IT INC.
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Respondent
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REASONS
FOR JUDGMENT
WOODS J.A.
[1]
U-Haul International Inc. (U-Haul) is a U.S. corporation
that applied for registration under the Trade-marks Act, R.S.C. 1985, c.
T-13 (the Act) in respect of four trademarks, U-BOX, U-BOX WE-HAUL, U-HAUL
U-BOX, and U-HAUL U-BOX WE-HAUL. U-Haul has licensed these marks to entities
that carry on U-Haul’s business in Canada.
[2]
U Box It Inc., a Canadian corporation, opposed
the applications on the ground that the trademarks are confusing with its
registered trademark U BOX IT.
[3]
In four separate decisions, The Trade-marks
Opposition Board (the Board) permitted the registration of the two marks that
contain U-Haul’s name, U-HAUL U-BOX and U-HAUL U-BOX WE-HAUL. It denied
registration of the other two, U-BOX and U-BOX WE-HAUL.
[4]
U-Haul appealed to the Federal Court under
section 56 of the Act with respect to the two decisions adverse to it. The Federal
Court upheld these decisions, and U-Haul now appeals to this Court.
[5]
In this appeal, U-Haul submits that the Federal
Court erred by: (1) not conducting a de novo analysis on the basis of
new evidence, and (2) upholding the Board’s conclusion that the trademarks are
confusing.
[6]
By way of background, U-Haul applied for
registration of U-BOX and U-BOX WE-HAUL on October 15, 2009 for use in
association with “moving and
storage services, namely, rental, moving, storage, delivery and pick up of
portable storage units.” Use of these trademarks
in Canada commenced around the same time.
[7]
As suggested by the marks, this part of U-Haul’s
business involves a service whereby a large box, or portable storage unit, is
supplied to a customer, filled by the customer, and then taken away by a U-Haul
entity for moving or storage. Typically the service itself offers an
opportunity for advertising because the boxes prominently display the
trademarks at issue and sit on the customer’s driveway.
[8]
U Box It Inc.’s trademark, U BOX IT, was
registered on February 29, 2008 for use in association with “garbage removal and waste management
services.”
[9]
The garbage removal business is performed in a
similar fashion to U-Haul’s business. A large box is supplied to a customer,
and after being filled with waste by the customer the box is picked up for
disposal. Typically these boxes also prominently display the trademark at issue
and sit on customers’ driveways.
I.
Relevant Legislation
[10]
The relevant provisions of the Act are
reproduced in Appendix A.
[11]
Under section 38 of the Act, the registration of
a trademark may be opposed on any of the following grounds:
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(a) that the application does not conform to the requirements of
section 30;
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a) la
demande ne satisfait pas aux exigences de l’article 30;
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(b) that the trade-mark is not registrable;
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b) la
marque de commerce n’est pas enregistrable;
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(c) that the applicant is not the person entitled to
registration of the trade-mark; or
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c) le
requérant n’est pas la personne ayant droit à l’enregistrement;
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(d) that the trade-mark is
not distinctive.
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d) la
marque de commerce n’est pas distinctive.
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[12]
These grounds relate to various requirements for
registration in the Act. Three of these are relevant in this appeal, and all
relate to the test for confusion. They are:
(a)
A trademark is not registrable if it is
confusing with a registered trademark (paragraphs 38(2)(b) and 12(1)(d)
of the Act). The determination of whether two trademarks are confusing is made
as at “the date where the
matter is disposed of on the evidence adduced” (Park
Avenue Furniture Corp. v. Wickes/Simmons Bedding Ltd. (1991), 37 C.P.R.
(3d) 413 at 422, 130 N.R. 223 (F.C.A.)).
(b)
A trademark that had been used in Canada or made
known in Canada may not be registered if it is confusing with a trademark that
had been previously used in Canada or made known in Canada by any other person.
This determination is to be made as at the date that the applicant’s mark was
first used or made known in Canada (paragraphs 38(2)(c) and 16(1)(a)
of the Act).
(c)
A trademark can only be registered if it is “distinctive”,
which means that the trademark distinguishes the goods or services from the
goods or services of others, or is adapted to distinguish them (paragraph
38(2)(d) and section 2 of the Act). This is to be determined as at the
date of filing the statement of opposition (Park Avenue Furniture, at
423-424).
[13]
The framework for determining whether one
trademark is confusing with another is set out in section 6 of the Act. In
general, the test to determine confusion is whether the use of both marks in
the same area would be likely to lead to the inference that the relevant goods
or services are manufactured, sold, leased, hired or performed by the same
person. For this purpose, the term “use” is given an expansive meaning
in section 4 of the Act.
[14]
Subsection 6(5) sets out the considerations to
be taken into account in this determination. All the surrounding circumstances
are to be considered, including:
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(a) the inherent
distinctiveness of the trade-marks or trade-names and the extent to which
they have become known;
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a) le caractère distinctif inhérent des
marques de commerce ou noms commerciaux, et la mesure dans laquelle ils sont
devenus connus;
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(b) the length of time the trade-marks or trade-names have been
in use;
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b) la
période pendant laquelle les marques de commerce ou noms commerciaux ont été
en usage;
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(c) the nature of the
goods, services or business;
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c) le genre de produits, services ou
entreprises;
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(d) the nature of the
trade; and
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d) la nature du commerce;
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(e) the degree of resemblance between the trade-marks or
trade-names in appearance or sound or in the ideas suggested by them.
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e) le degré de ressemblance entre les
marques de commerce ou les noms commerciaux dans la présentation ou le son,
ou dans les idées qu’ils suggèrent.
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II.
The Board and Federal Court decisions
[15]
The Board (per Member Fung) determined that,
based on the three grounds of opposition mentioned in the previous section,
U-Haul failed to show on a balance of probabilities that U-Haul’s two
trademarks were not confusing with U Box It Inc.’s mark: 2014 TMOB 207 (U-BOX)
and 2014 TMOB 208 (U-BOX WE-HAUL). The particular findings of the Board are concisely
summarized in U-Haul’s memorandum, at paragraph 16:
(a) On September 26, 2014, the date of the TMOB Decisions,
the U-Haul Trademarks were confusing with the previously registered Respondent
Trademark – contrary to s. 12(1)(d) of the Trade-marks Act, RSC 1985, c T-13
(“TMA”);
(b) On October 3, 2009, the date of first use of the U-Haul
Trademarks, the Appellant was not entitled to registration because the U-Haul
Trademarks were confusing with the previously used Respondent Trademark –
contrary to s. 16(1)(a) of the TMA; and
(c) On August 31, 2010 (U-BOX) and on November 15, 2010
(U-BOX WE-HAUL), the dates of the Statements of Opposition, the U-Haul
Trademarks were not distinctive because they were confusing with the Respondent
Trademark – contrary to s. 2 of the TMA.
[16]
In its confusion analysis, the Board considered
the factors listed in subsection 6(5) of the Act and then weighed these factors
in reaching an overall conclusion. The Board’s general conclusion with respect
to each of the subsection 6(5) factors is set out below.
(a)
Paragraph 6(5)(a) – The factor of
distinctiveness favours U-Haul because of the distinctiveness acquired through greater
sales and presence.
(b)
Paragraph 6(5)(b) – The factor of length
of time in use favours U Box It Inc. because it commenced sales using its
trademark in 2006 whereas U-Haul did not commence using its trademarks in
Canada until October 3, 2009.
(c)
Paragraph 6(5)(c) – The nature of the
services factor slightly favours U Box It Inc. Although the services themselves
are not the same since one is garbage disposal and the other is moving and
storage, there is similarity in the way the services are provided and the
services are complementary since a customer who is moving or renovating may
require moving or storage services and also garbage removal services.
(d)
Paragraph 6(5)(d) – The nature of trade
factor does not favour either party. Although there is a connection between the
services in that potential customers could require both types of services in
connection with a move or renovation project, an overlap in channels of trade
is unlikely.
(e)
Paragraph 6(5)(e) – The factor of
resemblance favours U Box It Inc. because the trademarks share the same
important feature, “U BOX”.
[17]
In weighing these factors, the Board found in
favour of U Box It Inc. The Board’s analysis was very similar for the two
U-Haul trademarks and at all material dates. Its general conclusion with
respect to U-BOX is reproduced from paragraph 53 of that decision.
[53] In applying
the test for confusion, I have considered it as a matter of first impression
and imperfect recollection. Having regard to all the surrounding circumstances
including the high degree of resemblance between the parties’ trade-marks, the
longer period of time for which the Opponent’s trade-mark has been in use, as
well as the similarities in the execution of and the complementary nature of
the parties’ services, I am of the view that the average Canadian consumer,
when faced with moving and storage services offered and performed under the
trade-mark U-BOX, would likely think that they originate from the same source
as the garbage removal and waste management services offered and performed
under trade-mark U BOX IT, or vice versa. While I acknowledge that the Applicant’s
Mark has acquired distinctiveness to a larger extent than that of the
Opponent’s from 2009 to 2012, I am of the view that it is insufficient to shift
the balance of probabilities in favour of the Applicant in the present case.
[18]
Accordingly, the Board allowed the opposition to
U-Haul’s applications and denied the registration of these two trademarks.
[19]
In the appeal to the Federal Court, there were
two issues, whether to conduct a de novo analysis on account of new
evidence, and whether there was an error in the Board’s finding of confusion.
[20]
In reasons cited as 2015 FC 1345, the Federal
Court (per Camp J.) refused to conduct a de novo review on the
basis that the new evidence would not have made a material difference in the Board’s
findings of fact or exercise of discretion. As for the confusion finding, the
Federal Court applied a reasonableness standard of review and dismissed the
appeal on the basis that the Board’s decisions were reasonable.
III.
Analysis
A.
Should the Federal Court have undertaken a de
novo analysis?
[21]
Section 56 of the Act permits an appeal of a
decision of the Board to the Federal Court. In the appeal, new evidence may be
introduced and the Federal Court “may exercise any discretion vested in the Registrar” (subsection 56(5)).
[22]
The introduction of new evidence may radically
change the approach to be taken by the Federal Court. This was discussed in Servicemaster
Company v. 385229 Ontario Ltd. (Masterclean Service Company), 2015 FCA 114,
132 C.P.R. (4th) 161, at paragraph 16:
[16] The standard
of review to be applied in an appeal of a decision of the Board is
reasonableness. In particular, the Board’s interpretation of the Act as its
home statute is subject to deference. […] Moreover, when new evidence is
adduced on appeal before the judge under section 56 of the Act and the judge
comes to the conclusion that the new evidence would have materially affected
the Board’s finding of fact or exercise of discretion, the judge must come to
his own conclusion on the issue to which the additional evidence relates (Molson
Breweries v. John Labatt Ltd., [2000] 3 F.C. 145, [2000] F.C.J. No. 159 at
para.51).
[23]
At the Federal Court, U-Haul introduced new
affidavit evidence that included telephone listings for the purpose of establishing
that U-Haul’s and U Box It Inc.’s services and channels of trade do not overlap.
According to U-Haul, this evidence reveals that no one business in Canada likely
provides the services of both garbage removal and moving and storage.
[24]
The Federal Court considered whether a de
novo analysis was appropriate as a result of this new evidence and concluded
that it was not because the new evidence would not have materially affected the
Board’s reasoning or its findings of fact (Federal Court reasons, paragraph
34).
[25]
U-Haul submits that the Federal Court should
have conducted a de novo review. It submits that the new evidence is
material because it negates the Board’s finding that the parties’ services may
be complementary. This is a question of mixed fact and law for which the
standard of review is palpable and overriding error: Monster Cable Products,
Inc. v. Monster Daddy, LLC, 2013 FCA 137, 445 N.R. 379, at paragraph 4.
[26]
In my view, the Federal Court made no palpable
and overriding error in refusing to undertake a de novo review. I agree
with U Box It Inc. that the new evidence merely supplements or confirms the
findings of the Board. The Federal Court’s conclusion on this issue, which was
well explained in its reasons, was open to it.
B.
Are the trademarks confusing?
[27]
As mentioned above, the Board and the Federal
Court confirmed all three grounds of opposition relating to confusion. I will
first consider the decision under paragraph 12(1)(d) of the Act that U-Haul’s
trademarks are confusing with a registered trademark, U BOX IT.
[28]
The standard of review that applies to this
issue is set out in Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47, (Servicemaster,
at paragraphs 16-18). In essence, this Court is to step into the shoes of the Federal
Court and determine whether the Board’s decisions are reasonable.
[29]
U-Haul submits that the Board’s confusion
analysis contains many errors in its selection of subsection 6(5) factors to be
considered and in its determination as to how these factors should be weighed.
Some of the key alleged errors are listed below.
(a)
The Board did not give sufficient weight to the
fact that the services of moving and storage and garbage removal are so
dissimilar.
(b)
The Board should not have given any weight to
the similarities in the manner in which the services are provided.
(c)
The Board erred in giving weight to unreliable
evidence as to the first use of U Box It Inc.’s trademark.
(d)
The Board failed to give sufficient weight to
minor differences in the trademarks given that they all had low inherent
distinctiveness.
(e)
The Board erred in considering that the channels
of trade was a neutral factor because it was clearly in U-Haul’s favour.
(f)
The Board erred in not giving due weight to
U-Haul’s notoriety.
[30]
In light of the appropriate standard of review,
this Court cannot intervene in the Federal Court’s decision if the Board’s
overall conclusions are within a range of reasonable outcomes. In addition, the
Supreme Court has instructed that significant deference should be shown to the
Board in its confusion analysis: “[t]he determination of the likelihood of confusion requires an
expertise that is possessed by the Board (which performs such assessments day
in and day out) in greater measure than is typical of judges …”: Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1
S.C.R. 772, at paragraph 36.
[31]
For the reasons below, I have concluded that the
Board’s decisions withstand scrutiny and that there is no basis to intervene. I
acknowledge that in this case there are important factors in U-Haul’s favour.
On the other hand, it was reasonable for the Board to give overriding weight to
the circumstances in favour of U Box It Inc.
[32]
One of U-Haul’s main submissions was that the
Board did not give sufficient weight to the fact that the services of moving
and storage and garbage removal are so dissimilar. It provides the following
analogy at paragraph 54 of its memorandum:
Allowing the
manner in which a service is provided to be a paramount consideration in the
determination of confusion between two trademarks will drastically enlarge the
rights of trade-mark holders and prevent businesses with similar trademarks
from providing even unrelated goods and services. The effect of upholding the
findings of Mr. Justice Camp and the Registrar would be, for example, to
prevent a bottled water delivery service from carrying a similar trade-name as
an electrician because both rely upon a van to drive to a customer’s door to
provide the service. Additionally, with many businesses providing their goods and
services through the internet, one senior trade-mark holder would effectively
be able to monopolize the entirety of the internet, because the manner in which
the service is provided is similar.
[33]
In my view, this analogy does not hold water. Unlike
the services at issue in this appeal, there is very little in common between
the delivery of bottled water and an electrician’s services. In this case, the
Board reasonably found that the services of U-Haul and U Box It Inc. were
performed in a similar manner and that their customers might overlap because
individuals who are in the process of moving or renovating may be interested in
the services of both companies.
[34]
U-Haul also submits that the manner in which the
services are performed should not have been the paramount consideration. This
was not the case in the Board’s decisions. In particular, the Board emphasized
other factors, such as the strong resemblance in appearance, sound, and ideas
between the marks. It also noted that U-Haul’s trademarks are not inherently
distinctive, and were not used in Canada until a few years after the trademark
belonging to U Box It Inc.
[35]
U-Haul also submits that the Board did not give
sufficient weight to the small differences in the trademarks, which provide
distinctiveness in circumstances where the marks are not inherently
distinctive.
[36]
I disagree. The Board concluded that
distinctiveness was in U-Haul’s favour, based on the distinctiveness that it
acquired from significant use. However, other factors trumped this consideration.
The weighing exercise undertaken by the Board was reasonable based on the facts
of this case.
[37]
U-Haul also takes issue with the Board’s
conclusion as to the nature of the trade. U-Haul submits that this factor is in
its favour, whereas the Board found that it was not in either party’s favour.
This is explained in paragraph 46 of the Board’s decision with respect to U-BOX
WE-HAUL.
[46] In view
of the connection that exists between the parties’ services and the fact that
the Opponent’s registration and the application for the Mark do not contain any
restrictions, there is potential for overlap in the parties’ channels of trade.
However, such overlap appears to be unlikely as the evidence shows that the
Applicant’s services are only made available by contacting U-HAUL by phone, via
the U-HAUL website or at the U-HAUL service locations.
[38]
I agree with U-Haul that the Board’s conclusion
that this factor does not favour either party is difficult to reconcile with
the Board’s finding that an overlap in the channels of trade is unlikely.
However, when the reasons of the Board are considered as a whole, it is clear
that the “channels of trade” was not a factor that would have affected the Board’s decisions.
The Board took a number of circumstances into account and weighed them
reasonably in U Box It Inc.’s favour. It is the facts and circumstances that
are important, rather than the formal label given to them in subsection 6(5) of
the Act.
[39]
U-Haul further submits that the Board erred in its
conclusion on length of use in paragraph 6(5)(b). In particular, U-Haul
suggests that there was not sufficient reliable evidence to support the Board’s
finding that U Box It Inc.’s use commenced in 2006.
[40]
I disagree. The Board is entitled to significant
deference in its evaluation of the evidence. The Board’s reasons amply support
the conclusion that U Box It Inc.’s first use was in 2006, and there is no
basis for this Court to intervene.
[41]
Essentially, in this appeal U-Haul asks this
Court to re-evaluate the evidence and re-weigh the confusion factors. In my
view, the decisions of the Board with respect to paragraph 12(1)(d) are
reasonable, and it is not appropriate to conduct a re-weighing exercise in this
case.
[42]
As a result of this conclusion, it is not
necessary to discuss paragraphs 16(1)(a) and 38(2)(d) of the Act, which are U
Box It Inc.’s other grounds of opposition.
[43]
I would dismiss the appeal with costs.
“Judith Woods”
“I agree
Wyman W. Webb J.A.”
“I agree
A.F. Scott J.A.”
APPENDIX A
Trade-marks Act, R.S.C., 1985, c. T-13
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Definitions
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Définitions
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2 In this Act,
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2 Les
définitions qui suivent s’appliquent à la présente loi.
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…
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[…]
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distinctive, in relation to a trade-mark, means a trade-mark that actually
distinguishes the goods or services in association with which it is used by
its owner from the goods or services of others or is adapted so to
distinguish them; (distinctive)
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distinctive Relativement à une marque de commerce, celle qui distingue
véritablement les produits ou services en liaison avec lesquels elle est
employée par son propriétaire, des produits ou services d’autres
propriétaires, ou qui est adaptée à les distinguer ainsi. (distinctive)
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When mark or
name confusing
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Quand une marque ou un nom crée de la confusion
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6 (1) For the purposes of this Act, a trade-mark or trade-name is
confusing with another trade-mark or trade-name if the use of the first mentioned
trade-mark or trade-name would cause confusion with the last mentioned
trade-mark or trade-name in the manner and circumstances described in this
section.
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6 (1) Pour l’application de la présente loi, une marque de
commerce ou un nom commercial crée de la confusion avec une autre marque de
commerce ou un autre nom commercial si l’emploi de la marque de commerce ou
du nom commercial en premier lieu mentionnés cause de la confusion avec la
marque de commerce ou le nom commercial en dernier lieu mentionnés, de la
manière et dans les circonstances décrites au présent article.
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(2) The use of a trade-mark causes confusion with another
trade-mark if the use of both trade-marks in the same area would be likely to
lead to the inference that the goods or services associated with those
trade-marks are manufactured, sold, leased, hired or performed by the same
person, whether or not the goods or services are of the same general class.
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(2) L’emploi
d’une marque de commerce crée de la confusion avec une autre marque de
commerce lorsque l’emploi des deux marques de commerce dans la même région
serait susceptible de faire conclure que les produits liés à ces marques de
commerce sont fabriqués, vendus, donnés à bail ou loués, ou que les services
liés à ces marques sont loués ou exécutés, par la même personne, que ces
produits ou ces services soient ou non de la même catégorie générale.
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…
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[…]
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(5) In determining whether trade-marks or trade-names are
confusing, the court or the Registrar, as the case may be, shall have regard
to all the surrounding circumstances including
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(5) En
décidant si des marques de commerce ou des noms commerciaux créent de la
confusion, le tribunal ou le registraire, selon le cas, tient compte de
toutes les circonstances de l’espèce, y compris :
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(a) the inherent distinctiveness of the trade-marks or
trade-names and the extent to which they have become known;
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a) le
caractère distinctif inhérent des marques de commerce ou noms commerciaux, et
la mesure dans laquelle ils sont devenus connus;
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(b) the length of time the
trade-marks or trade-names have been in use;
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b) la période pendant laquelle les
marques de commerce ou noms commerciaux ont été en usage;
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(c) the nature of the
goods, services or business;
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c) le genre de produits, services ou
entreprises;
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(d) the nature of the trade; and
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d) la
nature du commerce;
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(e) the degree of
resemblance between the trade-marks or trade-names in appearance or sound or
in the ideas suggested by them.
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e) le degré de ressemblance entre les
marques de commerce ou les noms commerciaux dans la présentation ou le son,
ou dans les idées qu’ils suggèrent.
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When trade-mark registrable
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Marque de
commerce enregistrable
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12 (1) Subject to section 13, a trade-mark is registrable if it is
not
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12 (1) Sous réserve de l’article 13, une marque de commerce est
enregistrable sauf dans l’un ou l’autre des cas suivants :
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…
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[…]
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(d) confusing with a registered trade-mark;
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d) elle
crée de la confusion avec une marque de commerce déposée;
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…
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[…]
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Registration
of marks used or made known in Canada
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Enregistrement des marques employées ou révélées au Canada
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…
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[…]
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16 (1) Any applicant who has
filed an application in accordance with section 30 for registration of a
trade-mark that is registrable and that he or his predecessor in title has used
in Canada or made known in Canada in association with goods or services is
entitled, subject to section 38, to secure its registration in respect of
those goods or services, unless at the date on which he or his predecessor in
title first so used it or made it known it was confusing with
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16 (1) Tout
requérant qui a produit une demande selon l’article 30 en vue de
l’enregistrement d’une marque de commerce qui est enregistrable et que le
requérant ou son prédécesseur en titre a employée ou fait connaître au Canada
en liaison avec des produits ou services, a droit, sous réserve de l’article
38, d’en obtenir l’enregistrement à l’égard de ces produits ou services, à
moins que, à la date où le requérant ou son prédécesseur en titre l’a en
premier lieu ainsi employée ou révélée, elle n’ait créé de la confusion :
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(a) a trade-mark that had been previously used in Canada or made
known in Canada by any other person;
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a) soit
avec une marque de commerce antérieurement employée ou révélée au Canada par
une autre personne;
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Statement of opposition
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Déclaration
d’opposition
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38 (1) Within two months
after the advertisement of an application for the registration of a
trade-mark, any person may, on payment of the prescribed fee, file a
statement of opposition with the Registrar.
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38 (1) Toute personne peut, dans le délai de deux
mois à compter de l’annonce de la demande, et sur paiement du droit prescrit,
produire au bureau du registraire une déclaration d’opposition.
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Grounds
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Motifs
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(2) A statement of opposition may
be based on any of the following grounds:
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(2) Cette opposition peut être fondée
sur l’un des motifs suivants :
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(a) that the application does not conform to the requirements of
section 30;
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a) la
demande ne satisfait pas aux exigences de l’article 30;
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(b) that the trade-mark is
not registrable;
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b) la
marque de commerce n’est pas enregistrable;
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(c) that the applicant is not the person entitled to
registration of the trade-mark; or
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c) le
requérant n’est pas la personne ayant droit à l’enregistrement;
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(d) that the trade-mark is not distinctive.
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d) la
marque de commerce n’est pas distinctive.
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Appeal
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Appel
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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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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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…
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[…]
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(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.
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(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.
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