TRADE MARKS |
Registration |
N.V. Sumatra Tobacco Trading Co. v. Imperial Tobacco Ltd.
T-1855-99
2001 FCT 250, O'Keefe J.
27/3/01
23 pp.
Appeal under Trade-marks Act, s. 56 of Hearing Officer's decision refusing registration of trade-mark "Hero & Design" (application No. 773,162) by N.V. Sumatra Tobacco Trading Co.--Appellant seeking order above decision be set aside, trade-mark application be allowed, opposition be dismissed--Application to register trade-mark based on prior use, registration in Indonesia in association with cigarettes, proposed use in Canada in association with cigarettes, cigarette lighters--Application advertised for opposition purposes in Trade-marks Journal of December 20, 1995--Imperial Tobacco Ltd. filing statement of opposition to registration of Sumatra's mark on February 19, 1996--Registrar refusing Sumatra's application on basis Sumatra has not met legal burden of showing application in compliance with Act, s. 30--Standard of review to be applied to decisions of Registrar settled by F.C.A. in Molson Breweries, Partnership v. John Labatt Ltd. (2000), 5 C.P.R. (4th) 180--Decisions of Registrar, whether of fact, law, discretion, within area of expertise, to be reviewed on standard of reasonableness simpliciter--In applications for registration of trade-mark, legal burden upon applicant to show application for registration complies with Trade-marks Act, s. 30, but initial evidential burden on opponent to establish facts relied upon by it in support of s. 30 grounds of opposition--Opposition Board did not err in ruling Sumatra had not met legal burden in relation to Act, s. 30(h)--Drawing must accurately depict trade-mark as important public interest in knowing what trade-mark appellant intends to protect with application--Opposition Board's decision not only reasonable but correct--Opposition Board must decide each application on own merits--If earlier registrations made in error, without opposition filed with respect to "drawing", Opposition Board not bound by state of Register--Appellant not selling cigarettes in Indenosia in unfolded cigarette packages nor intending to sell cigarettes in that manner in Canada--Opposition Board did not err in holding respondent met initial evidential burden to establish relevant facts in support of opposition based on Act, s. 30--Each of Opposition Board member's findings reasonable, correct--Appeal dismissed--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 30 (as am. by S.C. 1993, c. 15, s. 64; idem, c. 44, ss. 230, 236(1)(h); 1994, c. 47, s. 198), 56.