TRADE MARKS |
Expungement |
Sim & McBurney v. Gesco Industries, Inc.
A-866-97
Rothstein J.A.
26/10/00
8 pp.
Whether Gesco Industries, Inc.'s registered trade mark "Stainshield" used in association with "services of stain resistant treatment for application to carpets, rugs" as described in registration--Registrar of Trade-marks finding "Stainshield" trade mark used in association with wares, not services as specified in registration--Expunged trade mark under Trade-marks Act, s. 45(3)--Trial Judge found evidence adduced before him established requisite use--Allowed appeal, ordered trade mark re-entered on register--Registrar did not exceed jurisdiction in considering whether use described by Gesco in association with wares, services--While summary procedure, Act, s. 45 requires Registrar to determine whether trade mark used in association with wares, services specified in registration--Jurisdiction of Registrar under s. 45(3) not only to determine whether evidence of use--Registrar erred in concluding trade mark not used in association with services--Registrar's findings containing implicit legal determination, namely, that trade mark used in association with services applied to product before it is sold constitutes use in association with wares, not use in association with services--Registrar's reasons indicating to qualify as trade mark in association with services, services must be rendered directly to public, not to product before sold to public--In making determination, Registrar erred on fundamental issue of statutory interpretation having significance beyond facts of case with respect to which Court entitled to intervene--Each case must be decided on own facts--On facts of this case, trade mark "Stainshield" used in association with services disclosed in registration of trade mark--Registrar erred in expunging "Stainshield" trade mark from register--Trial Judge correct in ordering it be re-entered on register--Appeal dismissed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 45 (as am. by S.C. 1993, c. 44, s. 232; 1994, c. 47, s. 200).