Canadian Kennel Club v. Continental Kennel Club
T-1274-97
Rothstein J.
8/12/97
4 pp.
Application for order for conditional appearance under R. 401 to challenge Federal Court jurisdiction-Test for order: whether defendant has prima facie raised sufficient doubt as to regularity of proceedings or jurisdiction rationae personae of Court that justice requiring he be permitted to appear in such manner as to avoid any waiver of objections (Antares Shipping Corp. v. The Capricorn, [1977] 2 F.C. 320 (C.A.))-Plaintiff provides registration services for pure bred dogs in Canada; defendant provides same type of services in United States, both using form of mark involving letters CKC-Plaintiff alleging trade mark infringement-Defendant says has no office in Canada, not providing services in Canada, and use of any mark not use in Canada-Advertising in Canada without providing services not use-No attornment to jurisdiction of Federal Court by defendant: correspondence between counsel in which defendant's counsel indicating statement of defence will be filed and requesting time to do so not attornment-No attempt by defendant to appear in Court or to take benefit of any process of Court-Indication by defendant's counsel to plaintiff's counsel that statement of defence will be filed not undertaking to Court-No evidence of intention to operate in Canada-Simply because defendant refusing to undertake for all time will never operate in Canada insufficient to support quia timet argument-Defendant has made out prima facie case Court without jurisdiction in matter-Application for conditional appearance granted and proceedings stayed in order to allow question of jurisdiction to be argued.