Primax Computer Corp. v. Primax Electronic ( U.S.A. ) Inc.
T-665-95
Denault J.
27/6/95
6 pp.
Respondent's motion to dismiss appellant's notice of appeal against Registrar's decision due to appellant's status of undischarged bankrupt; appellant's motion to substitute numbered company as appellant in proceedings -- Registrar rejecting appellant's opposition to respondent's registration of "Primax" trade mark for failure to meet evidentiary burden of adducing at least some evidence in support of allegations of fact -- Appellant becoming bankrupt before filing notice of appeal against Registrar's decision; receiver selling assets including name "Primax" and all trade mark registrations of name to third party which in turn sold assets to numbered company -- Upon becoming bankrupt, appellant losing capacity to proceed with opposition procedure or to retain firm to act on its behalf with respect thereto; only trustee in bankruptcy can file notice of appeal on behalf of bankrupt company -- As undischarged bankrupt, appellant lacking status to appeal Registrar's decision -- Appellant's motion requiring exercise of Court's discretion: Court having discretionary power to (1) amend procedure following error (R. 425); (2) change capacity of party (RR. 1724, 1725); or (3) repeal limitation periods in case of appeal against Registrar's decision (Act, s. 56) -- Appellant aware of status as undischarged bankrupt before filing notice of appeal; appellant not making genuine mistake qualifying as not misleading -- No express assignment of right to continue opposition proceedings included in sale of company's assets -- Act, s. 56 intended to confer upon Registrar task of evaluating evidence put forth by party opposing registration of trade mark whereas Court, as appeal court, authorized to accept evidence in addition to that adduced before Registrar; as appellant not filing evidence in original proceeding before Registrar, not having right to file evidence on appeal-Circumstances of case not justifying extension of time to file notice of appeal -- Respondent's motion granted; appellant's motion dismissed -- Federal Court Rules, C.R.C., c. 663, RR. 425, 1724, 1725 -- Trade-marks Act, R.S.C., 1985, c. T-13, s. 56.