TRADE MARKS |
Expungement |
The House of Kwong Sang Hong International Ltd. v. Borden Ladner Gervais
T-583-01
2004 FC 554, Noël J.
13/4/04
25 pp.
Appeal pursuant to Trade-marks Act (Act), s. 56, from decision of Senior Hearing Officer (Registrar) expunging, pursuant to Act, s. 45, applicant's trade-mark "Two Girls & Design", TMA 414825--Registrar holding evidence not showing use by applicant, The House of Kwong Sang International Ltd., but by another entity, The House of Kwong Sang Ltd.--Also concluded evidence not showing use of trade-mark as registered--As to use, evidence establishing use of least one of wares as registered in normal course of trade with consuming public during three-year period--As to use of trade-mark by applicant or some other entity, sufficient evidence to find use of trade-mark by corporate entity duly directed and supervised by applicant--As to use of each ware specified in registration, with regard to all wares registered except skin moisturizers, Registrar, based on evidence presented, exercised discretion on reasonable grounds and came to decision based on proper judicial principles-- However, new evidence supporting reversal of Registrar's decision concerning jar of face cream and finding trade-mark registration TMA 414825 for trade-mark "Two Girls & Design" appearing on face cream was in use in Canada at any time during relevant period--Appeal allowed in part-- Registrar's decision expunging wares listed in registration for TMA 414825 other than skin moisturizers upheld-- Registrar's decision expunging trade-mark "Two Girls & Design" reversed with regard to all wares registered as skin moisturizers--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 45 (as am. by S.C. 1994, c. 47, s. 200), 56.