Johann Becher OHG Likörfabrik v. Canada ( Registrar of Trade-marks )
T-185-95
Wetston J.
9/1/97
6 pp.
Appeal from Registrar of Trade-marks decision under Trade-marks Act, s. 45(5) expunging appellant's trade mark "Becherovka", registered in association with spirituous liquors or liqueurs, as not in use in Canada within preceding three years-Registrar found registrant had not satisfied legal burden of proving trade mark in use in Canada-Also, found ambiguity as to actual use being made; trade mark may have been used in combination with another trade mark-Registrar found such composite mark might not constitute use of trade mark within Canada-Issue whether trade mark as used by appellant so different from trade mark as registered could not qualify as use of trade mark as registered-Two principles regarding deviation from registered trade mark condensed in Nightingale Interloc Ltd. v. Prodesign Ltd. (1984), 2 C.P.R. (3d) 535 (T.M. Opp. Bd.): (1) Use of trade mark in combination with additional material constituting use of mark per se as trade mark if public, as matter of first impression, would perceive mark per se as being used as trade mark; (2) Trade mark considered as being used if trade mark actually used not substantially different and deviations not such as to deceive or injure public in any way-Back label on bottle reading: Becherbitter Destillerie, and on second line, Becherovka Karlsbad-Four words can be read as two separate lines and not unified group of four-When used with "Karlsbad", Becherovka still retaining identity as trade mark-For purposes of Trade-marks Act, s. 45 challenge, trade mark "Becherovka" as used recognizable as trade mark as registered-Combination of words did not create composite trade mark-Appeal allowed-Trade-marks Act, R.S.C., 1985, c. T-13, s. 45(5).