Immuno Concepts Inc. v. Immuno AG
T-1853-96
Hargrave P.
10/9/96
6 pp.
Motion to extend time to file additional affidavit evidence on appeal under Trade-marks, Act, s. 56-Affidavits proposed to be filed not attached to motion as not yet sworn-Under R. 704(7) where affidavit does not exist and cannot be tested for intrinsic worth, an extension for filing ought not be allowed except in special circumstances-Notice of motion must give reasons for delay, purpose of affidavits and probable use to be made of them in court-In present case, appellant's trade mark refused, Registrar taking position word "Immuno" distinctive-Evidence tendered before Registrar of nine registrations owned by six different owners and using the word "immuno" insufficient as did not provide evidence of use of those marks-Appellant now seeking to obtain third party affidavits from Canadian manufacturers, distributors or consumers of wares to show use of immuno prefix in Canada-Likelihood of evidence being available substantial-Applicant's material not showing steps taken during two months since Registrar's decision but note taken of summer months being difficult time to obtain prompt responses to enquiries due to holiday season-Special circumstances high probability of existence of evidence showing common adoption of use of prefix in trade-Motion granted-Federal Court Rules, C.R.C., c. 663, R. 704(7) (as am. by SOR/92-726, s. 9).