Gerd Eisenblatter Gmbh v. Kent & Edgar
T-1801-97
Dubé J.
8/9/98
7 pp.
Appeal under Trade-marks Act, s. 36 from decision of hearing officer of Registrar of Trade-marks expunging appellant's trade-mark "Zircotex"-Registrar finding no evidence of use of mark per se during relevant period-Managing director of corporation owning trade-mark filing exhibits to show use of composite mark "ZircotexFix"-Registrar concluding "in using composite mark "Zircotex-Fix" registrant did not use mark "Zircotex"-Counsel for appellant submitting use of ® symbol prima facie evidence of use of trade-mark-Term "Alu" defined in appellant's second affidavit as "common abbreviation of term `aluminium'"-Sole purpose of proceedings under Act, s. 45 to discover whether trade-mark in use in Canada, to remove "dead wood", namely trade-marks fallen into disuse-Reading of appellant's affidavits making it clear goods in question ones produced under trade-mark "Zircotex"-Paragraph 2 of second affidavit sufficiently clear goods in question "are shipped to Canada . . . in cardboard boxes and sealed with adhesive tape on which mark "Zircotex" is printed"-Additional evidence showing trade-mark in question used in Canada during three-year period preceding date of notice-Abbreviation "Alu" unimportant, not taking away trade-mark "Zircotex"'s identity-Mark "Zircotex" used in Canada at material time-Appeal allowed-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 36, 45.