TRADE MARKS |
Registration |
Stink Inc. v. Salt & Pepper Holding Ltd.
T-406-00
2001 FCT 549, Lemieux J.
18/5/01
16 pp.
Appeal from Trade-marks Opposition Board's dismissal of appellant's opposition to respondent's application to register trade-mark "The Stinking Rose" for use in association with restaurant in Coquitlam, British Columbia--Appellant owner of restaurant operating under trade-mark "The Stinking Rose" in San Francisco, having mainly Italian menu, emphasizing use of garlic--Board finding appellant's mark not well-known in Canada on August 30, 1993 when respondent opened restaurant in B.C.--Held evidence established at most 50 persons in Vancouver area aware of appellant's trade-mark prior to date of opposition--Sole issue before Court whether "The Stinking Rose" not distinctive of respondent's restaurant because appellant's trade-mark well-known in Canada--Standard of review of decisions of Registrar, whether of fact, law or discretion, within area of expertise, to be reviewed on standard of reasonableness simpliciter: Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 (C.A.)--Reasonableness simpliciter meaning Court must look to see whether any reasons supporting conclusion: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748--Lack of distinctiveness meaning other mark known sufficiently to negate distinctiveness of mark under attack: Motel 6, Inc. v. No. 6. Motel Ltd., [1982] 1 F.C. 638 (T.D.)--Finding of lack of distinctiveness finding of fact--Standard of review of factual findings extremely deferential--Appeal dismissed--Evidence before Board upon which could base findings--Cannot say Board's findings clearly wrong (unreasonable)--Appellant asking Court to re-weigh factual findings which cannot do.