TRADE MARKS |
Expungement |
ConAgra Foods, Inc. v. Fetherstonhaugh & Co.
T-296-01
2002 FCT 1257, MacKay J.
4/12/02
12 pp.
Applicant appealing decision of Registrar expunging trade-mark "Kid Cuisine" pursuant to s. 45 of Trade-marks Act --Registrar finding no evidence of use of mark in three years prior to date of s. 45 notice--Additional evidence filed in this appeal--Upon review of additional evidence filed on appeal respondent withdrawing objection to registration of trade-mark--Appeal allowed--Where additional evidence adduced in Trial Division that would have affected Registrar's decision, Trial Division Judge must come to own conclusions: Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 (C.A.)--Acceptance of order prior to date of s. 45 notice, distribution of samples with view to developing market and transfer of sample products to merchants testing product constituting use within s. 4(1) of Act--Act not requiring extensive transfers of property or possession of wares--Court interpreting description of wares subject to trade-mark to include wares sold--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 4(1), 45 (as am. by S.C. 1994, c. 47, s. 200).