Opus Building Corp. v. Opus Corp.
T-109-94
Pinard J.
23/3/95
7 pp.
Application, pursuant to Act, s. 57, for order to strike registration of trade mark "Opus" from register on grounds mark not accurately expressing or reflecting or defining existing rights of registered owner -- Applicant and respondent companies using same mark in relation to building design, construction and development services -- Applicant's use of trade name constituting use of trade mark as word Opus most prominent element of corporate name -- Applicant submitting survey evidence with respect to distinctiveness -- Survey evidence admissible as: (1) conducted by expert in field of public opinion; (2) sampling from appropriate "universe"; (3) designed, conducted and results processed in professional manner, independent of applicant and its counsel; (4) not geographically restricted; (5) conducted in both official languages and involving both male and female respondents; (6) evidence put forward as basis on which expert assessed recognizability of word "Opus" in survey universe -- Survey evidence establishing "Opus" mark distinguishing applicant's services to much greater degree than respondent's -- Respondent not entitled to secure registration of mark at time of alleged first use as mark confusing with appellant's trade mark and trade name previously used in Canada -- Respondent's trade mark not distinctive of respondent's services at date proceedings commenced-Uncontradicted evidence demonstrating respondent not using mark in Canada for significant period: intention to abandon trade mark inferred -- Application granted[cad 211]Trade-marks Act, R.S.C., 1985, c. T-13, s. 57.