Mantha & Associates v. Le Cravatte di Pancaldi S.r.L.
T-2534-97
Teitelbaum J.
13/11/98
16 pp.
Appeal from Registrar of Trade-marks' decision maintaining respondent's registration of trade mark "Vitaliano Pancaldi" (White) & Design in association with "high fashion clothing for women and men and ready-to-wear clothing, namely: ties and foulards"-Registrar also finding mark used on invoices not substantially different from trade-mark as registered, even though square design surrounding design "Pancaldi" omitted; photocopies of labels sufficient to establish use since statements of facts in affidavit indicating trade-mark associated with clothing items; pocket scarf is foulard-Trade-marks Act, s. 45 requiring owner of registration to show whether trade-mark as registered in use in Canada at any time during three years prior to issuance of notice-In response to s. 45 proceedings, respondent filing affidavit, exhibits in support thereof-To illustrate use of trade-mark, introducing into evidence by way of affidavit invoices showing sales of ties, pocket scarves bearing trade-mark "Vitaliano Pancaldi", as well as photocopied samples of labels-Appellant submitting mark shown on invoices, labels not showing mark as registered-Only element missing rectangular shape around words and V design-Appeal dismissed-(1) In holding deviation minor, not apt to deceive, cause injury, Registrar applied proper test as stated in Registrar of Trade Marks v. Compagnie Internationale pour l'informatique CII Honeywell Bull, [1985] 1 F.C. 406 (C.A.)-(2) Owner having duty to lead best evidence as to use of trade-mark in Canada-Evidence in form of photocopies not necessarily resulting in invalid registration-Only issue whether evidence showing use of trade-mark as registered in Canada-Evidence adduced by way of affidavit showing use of trade-mark as registered-Labels used in association with wares-Clear, unequivocal mark used in relation to ties, foulards-(3) In light of dictionary definitions, pocket scarf is foulard-Standard of review on appeal requiring Court be clearly satisfied Registrar came to wrong conclusion on facts or erred in law before Court interfering with Registrar's decision-Registrar not committing any reviewable error-Evidence clearly showing use of trade-mark as registered with respect to wares in Canada as required by s. 45-Trade-marks Act, R.S.C., 1985, c. T-13, s. 45 (as am. by S.C. 1994, c. 47, s. 200).