TRADE MARKS |
Magnotta Winery Corp. v. Vintners Quality Alliance
T-481-99
2001 FCT 1421, MacKay J.
20/12/01
29 pp.
Official marks--Application for judicial review of Registrar's decisions to publish notice of adoption and use of mark "Icewine" by respondent pursuant to Trade-marks Act, s. 9(1)(n)(iii)--Applicants, Ontario companies operating as corporate group, together cooperatively participating in making, production, retailing of Magnotta wines, including ice wine--Respondent Vintners Quality Alliance (VQA), non-share, not-for-profit corporation incorporated under Canada Corporations Act, Schedule 2, initially established for member Ontario wineries as industry trade association--Respondent established system for its members to use its marks in association with their wines that met VQA standards--In Ontario, Vintners Quality Alliance Act adopted in 1999 to establish, maintain appellation of origin system for wines produced in province, to be administered by new provincial corporation, Vintners Quality Alliance of Ontario (VQAO)--Government of Ontario then arranged for agreement between VQAO and VQA, whereby VQA agreed not to enforce any of its official marks against VQAO or any member of VQAO--Application dismissed--Issue of whether applicants had standing to challenge decisions effectively resolved for present case by Reed J. in Magnotta Winery Corp. v. Vintners Quality Alliance of Canada (1999), 1 C.P.R. (4th) 68 (F.C.T.D.), when she directed judicial review would be appropriate procedure for applicants, finding applicants had direct interest affected by decisions, and exposed to possible prejudice unless able to question it--Evidence adduced from respondent's affiant given in course of his cross-examination by counsel for applicants admissible--Affidavit containing opinion about status or nature of VQA not admissible as opinion cannot be said to have come into existence after hearing--Standard for review of decisions herein that of reasonableness simpliciter as evidence would not have materially affected Registrar's decision--Registrar did not err in finding, on evidence before him, VQA "public authority", and in finding it had adopted and used mark "Icewine", within meaning of those terms as used in Act, s. 9(1)(n)(iii)-- Nothing precluding use of official mark by party licensed or otherwise permitted to use it by public authority whose adoption and use of mark has been accepted and published by Registrar, and that authorized use constituting use by public authority--Finally, even if term "Icewine" perceived to be descriptive or generic, its recognition as official mark not precluded--Recognition cannot be said to be unreasonable--Trade-marks Act, R.S.C., 1985, c. T-13, s. 9(1)(n)(iii).