TRADE MARKS |
Expungement |
Brouillette v. Andrés Wines Ltd.
T-1622-03
2004 FC 812, Tremblay-Lamer J.
7/6/04
7 pp.
Appeal from decision by Registrar of Trade-marks (Registrar) confirming registration of trade-mark "In Vino Veritas" bearing registration number TMA 202357 following application to expunge mark filed by applicant under Trade-marks Act, s. 45--Registrar of opinion mark perceived as distinct from coat of arms on owner's (i.e. respondent's) labels --Applicant submitting Registrar erred in fact, law in determining respondent had proved use of trade-mark, in applying test developed in Nightingale Interloc Ltd. v. Prodesign Ltd. (1984), 2 C.P.R. (3d) 535 (T.N. Opp. Bd.) --When trade-mark used in combination with additional materials, it can amount to use of mark if as matter of first impression public perceives mark per se used as trade-mark--Test requiring Registrar to compare mark as registered with mark as used--Registrar did not make analysis-- Registered mark at issue not accompanied by decorative material--Use of mark very different--Always appears on scroll of respondent's coat of arms, indistinguishable from coat of arms--Differences between mark as registered and mark as used so significant that unreasonable for Registrar to infer that consumer as matter of first impression would perceive mark as distinct mark--Respondent failed to establish use of registered mark--Registrar's errors of law, fact open decision to review-- Appeal allowed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 45 (as am. by S.C. 1994, c. 47, s. 200).