TRADE‑MARKS
Appeal from portion of judgment (2007 FC 262) allowing BMW’s passing‑off claim under Trade‑marks Act, R.S.C., 1985, c. T‑13, s. 7(b)—Resort to s. 7(b) requiring proof of valid, enforceable trade‑mark—Necessary trade‑mark be “used” by person for purpose of distinguishing wares, services from those of others—Act, s. 2 defining “use” as any use deemed by s. 4 to be use in association with wares or services—BMW’s limited use in advertisements, promotional materials of “M” mark insufficient to constitute “use” under s. 4—No probative evidence demonstrating association at time of transfer of property in or possession of wares—Appeal allowed.
BMW Canada Inc. v. Nissan Canada Inc. (A‑3‑07, 2007 FCA 255, Richard C.J., judgment dated 12/7/07, 14 pp.)