T-1102-97
Novopharm Limited and Apotex Inc. (Applicants)
v.
Eli Lilly and Company and The Registrar of Trade-marks (Respondents)
Indexed as: Novopharm Ltd.v. Eli Lilly and Co. (T.D.)
Trial Division, Tremblay-Lamer J."Toronto, October 22; Ottawa, November 12, 1998.
Federal Court jurisdiction — Trial Division — Application to prohibit Registrar of Trade-marks from proceeding with application for registration of trade-marks — Prohibition available where jurisdictional error, violation of natural justice or procedural fairness — Issue of distinctiveness relied upon herein will be raised in opposition proceedings — Distinctiveness within Registrar's jurisdiction to consider — Court lacking authority to prohibit Registrar from performing statutory duties where no evidence acting outside jurisdiction.
Practice — Res judicata — Appeal pending from dismissal of trade-marks passing-off action — Final decision pre-condition to application of res judicata — Decision not final as appeal pending — Res judicata not applicable — Applicants submitting Court should order interim relief until appeal decided — Pre-conditions for application of principle of res judicata should not be modified to fit relief sought — Applicants in fact seeking stay of proceedings, but such relief could not be granted as no evidence of irreparable harm.
Trade-marks — Registration — Opposition — Res judicata — Application to prohibit Registrar from proceeding with application for registration of trade-marks — Appeal from dismissal of trade-marks passing-off action pending — Doctrine of res judicata applicable where both parties having equal opportunity to present case, challenge opponent's case — Applies to opposition proceedings — Res judicata not applicable herein as no final decision in that appeal pending.
Administrative law — Judicial review — Prohibition — Application to prohibit Registrar from proceeding with application for registration of trade-marks — Prohibition available where jurisdictional error, violation of natural justice or procedural fairness — Issue of distinctiveness, relied upon herein, will be raised in opposition proceedings — Distinctiveness within Registrar's jurisdiction to consider — Court lacking authority to prohibit Registrar from performing statutory duties where no evidence acting outside jurisdiction.
This was an application for an order prohibiting the Registrar of Trade-marks from proceeding with the applications for registration of the trade-marks filed by Eli Lilly and Company for capsules containing the drug "Prozac". The trade-marks were the colours applied to the whole visible surface of the capsules. After advertisement of Lilly's application for the trade-marks in the Trade-marks Journal, Novopharm filed statements of opposition. Lilly brought actions for passing off against Novopharm, Apotex and Nu-Pharm, seeking injunctions to prohibit their use of capsules of the same size, shape and colour as that of the plaintiffs. Reed J. dismissed the actions, and an appeal therefrom is pending.
The issues upon this application were: (1) whether the Federal Court had jurisdiction to grant prohibition against the Registrar of Trade-marks, when she is acting within her jurisdiction; and (2) whether the decision of Reed J. rendered the matter res judicata.
Held, the application should be dismissed.
(1) In a trade-mark opposition proceeding, a writ of prohibition will be available where there has been a jurisdictional error or a violation of natural justice or procedural fairness. The issue of distinctiveness relied upon herein will be raised in the opposition proceedings, and is within the Registrar's jurisdiction to consider. The Court does not have jurisdiction to prohibit the Registrar from performing the task she is statutorily obligated to perform, where there is no evidence that she is acting outside of her jurisdiction. To find otherwise would be to permit the applicants to by-pass these statutory provisions.
(2) A decision must be final before res judicata can apply. If an appeal is pending, the decision is not final. That Reed J.'s decision was pending before the Federal Court of Appeal was sufficient to deny the application for prohibition. The applicants submitted that the lack of a final decision could be remedied by ordering "interim" relief until the appeal is decided. The pre-conditions for application of the principle of res judicata should not be modified to "fit" the relief sought by the applicants. In fact, the applicants were seeking a stay of proceedings pending disposition of the appeal, but a stay could not be granted because of the lack of evidence of irreparable harm.
Furthermore, there was some doubt about the applicability of res judicata in opposition proceedings. Res judicata should not bind a party which has not had the opportunity to participate in the proceedings. However, where both parties have been given equal opportunity to present their case and to challenge their opponent's case, then those parties should be bound by the decision rendered. The Registrar's decision may then be appealed to the Federal Court. Res judicata should apply to opposition boards, but only where the pre-conditions are satisfied. However, on a practical level, the number of technical differences in this area of the law will render the principle of little relevance.
statutes and regulations judicially considered
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(b) (as enacted by S.C. 1990, c. 8, s. 5).
Ontario Human Rights Code, 1961-62 (The), S.O. 1962-63, c. 93.
Trade-marks Act, R.S.C., 1985, c. T-13, ss. 7, 38(7) (as am. by S.C. 1993, c. 15, s. 66), 45 (as am. by S.C. 1994, c. 47. s. 200).
Trade-marks Regulations (1996), SOR/96-195, s. 44.
cases judicially considered
applied:
McDonald's Corp. et al. v. Registrar of Trade Marks et al. (1987), 15 C.P.R. (3d) 462; 10 F.T.R. 195 (F.C.T.D.); Friendly Ice Cream Corp. v. Friendly Ice Cream Shops Ltd., [1972] F.C. 712; (1972), 7 C.P.R. (2d) 35 (T.D.).
distinguished:
Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; (1971), 18 D.L.R. (3d) 1; Canadian Shredded Wheat Co. Ltd. v. Kellogg Co. of Canada Ltd., [1939] Ex. C.R. 58; [1939] 1 D.L.R. 7.
considered:
Eli Lilly and Co. v. Novopharm Ltd. (1997), 147 D.L.R. (4th) 673; 73 C.P.R. (3d) 371; 130 F.T.R. 1 (F.C.T.D.); Cara Operations Ltd. v. Reg. T.M. (1985), 10 Admin. L.R. 27; 3 C.P.R. (3d) 145 (F.C.T.D.); Walt Disney Co. v. Fantasyland Holdings Inc. (1977), 77 C.P.R. (3d) 356 (T.M.O.B.); Molson Companies Ltd. v. Halter (1976), 28 C.P.R. (2d) 158 (F.C.T.D.).
referred to:
Eli Lilly and Co. v. Canada (Commissioner of Patents) (1992), 42 C.P.R. (3d) 34; 54 F.T.R. 86 (F.C.T.D.); Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of Canada Limited, [1983] 2 F.C. 71; (1982), 142 D.L.R. (3d) 548; 69 C.P.R. (2d) 136; 45 N.R. 126 (C.A.); Rothmans, Benson & Hedges Inc. v. Imperial Tobacco Ltd. (1997), 74 C.P.R. (3d) 494 (F.C.T.D.); Barwell Food Sales Inc. v. Snyder & Fils Inc. (1988), 38 C.P.C. (2d) 192; 24 C.P.R. (3d) 102 (Ont. H.C.); Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341; Sunny Crunch Foods Ltd v. Robin Hood Multifoods Inc. (1982), 70 C.P.R. (2d) 244 (T.M.O.B.).
authors cited
Sopinka, J. et al. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
APPLICATION for an order prohibiting the Registrar of Trade-marks from proceeding with the applications for registration of the trade-marks filed by Eli Lilly and Company on the grounds of res judicata when an appeal was pending from the dismissal of a passing-off action. Application dismissed.
appearances:
Keri A. F. Johnston and Richard Naiberg for applicants.
Anthony G. Creber and Patrick S. Smith for respondent Eli Lilly and Company.
No one appearing for respondent Registrar of Trade-marks.
solicitors of record:
Malcolm Johnston & Associates, Toronto, for applicants.
Gowling, Strathy & Henderson, Ottawa, for respondent Eli Lilly and Company.
The following are the reasons for order rendered in English by
Tremblay-Lamer J.: This is an application for an order prohibiting the Registrar of Trade-marks from proceeding with the applications for registration of the trade-marks identified and published in the Trade-marks Journal of April 24, 1996 (Vol. 43-No. 2165), at page 56 under Serial No. 783,742 and Serial No. 783,743, both filed by the respondent Eli Lilly and Company (Lilly).
FACTS
The case deals with the capsules containing fluoxetine hydrochloride or "Prozac". The trade-marks in issue are the (1) "colours pale green and whitish-yellow applied to the whole visible surface of the capsules", and (2) the "colours pale green and pale grey applied to the whole visible surface of the capsules."
In November 1995 Lilly brought actions for passing off, pursuant to section 7 of the Trade-marks Act1 (the Act), against Novopharm, Apotex and Nu-Pharm. Lilly sought injunctions to prohibit the defendants' use of capsules the same size, shape and colour as the plaintiffs', based on the following arguments:
(i) the colour, shape and size of the 10 and 20 mg fluoxetine hydrochloride capsules formed Lilly's trade dress, and were distinctive to Lilly;
(ii) the activities of the Defendants would direct attention to their capsules in such a way as to cause or be likely to cause confusion in Canada between the Defendant's capsules and those of Lilly; and
(iii) Lilly had filed applications to register the trade dress of their 10 and 20 mg fluoxetine hydrochloride capsules, earlier that year, having Serial Nos. 783,742 and 783,743 on May 25, 1996.
In a decision dated 25 April 1997, Reed J. dismissed the actions.2 She found:
(i) There had been no use by Lilly in Canada.3
(ii) The capsules are not distinctive of Lilly in Canada.4
(iii) The plaintiffs did not prove that the defendants' sale of fluoxetine in capsules having a similar appearance to those of the plaintiff would result in any significant likelihood of confusion.5
Lilly has appealed the decision of Reed J. in the passing-off actions to the Federal Court of Appeal. The appeals are still pending.6
On 26 May 1995, Lilly filed an application with the Registrar of Trade-marks for the two trade-marks in issue.
The Trade-marks office approved the trade-mark applications and advertised them in the Trade-marks Journal for opposition purposes on 26 April 1996.
On 24 September 1996, Novopharm filed statements of opposition against each of the applications, based in summary on the following grounds:
a) the alleged trade-marks were not used in Canada by Lilly since the date claimed;
b) the colours of the alleged trade-marks do not of themselves distinguish Lilly's wares;
c) the alleged trade-marks are not trade-marks being functional; and
d) Lilly's alleged trade-marks consisting of the colours of its capsules are not distinctive in that the colours do not distinguish its wares from those of others.
Novopharm and Apotex brought an interim motion to stay the opposition proceedings. The motion was dismissed in its entirety by Rothstein J. on 30 June 1997.7 He was not satisfied that Novopharm would suffer irreparable harm if the motion was not granted, whereas it appeared that Lilly would be prejudiced by an interim stay, by reason of delay before the Trade-marks Opposition Board.
ISSUES
Does the Federal Court have jurisdiction to grant prohibition against the Registrar of Trade-marks, when she is acting within her jurisdiction?
Does the decision of Reed J. render the matter before the Registrar of Trade-marks res judicata?
POSITIONS OF THE PARTIES
In summary, the applicants submit that the decision of Reed J. was rendered, based on extensive evidence submitted by both parties, on precisely the same issues. The matter before the Opposition Board is therefore res judicata. To permit the Registrar to continue the opposition proceedings, when a full trial has already been conducted on the issues, would be to permit Lilly to launch a collateral attack on the decision rendered, by bringing proceedings in another forum. To do so would constitute an abuse of process, and as such would be a ground for granting a prohibition, under paragraph 18.1(4)(b) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7]:
18.1 . . .
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
. . .
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
With respect to the decision of Reed J. being under appeal, and thus not a "final" decision, the applicants submitted that the writ of prohibition is a discretionary power, which the Court can tailor to suit the specific facts of this case. They suggested, for example, an "interim" order, which would be lifted if Reed J.'s judgment is overturned on appeal.
The respondents, on the other hand, submit that this Court does not have jurisdiction to prevent a federal board, acting within its jurisdiction, from carrying out its duty. The writ of prohibition is restricted to where there has been a jurisdictional error or a violation of natural justice or procedural fairness. There is no evidence before the Court that the Registrar of Trade-marks has committed any reviewable error or violated any rule of natural justice or procedural fairness.
Further, the respondents submit that it is not appropriate for this Court to determine the issue of res judicata in these proceedings. There are essential requirements for this principle to apply: a decision must be final; there has to be identity of issues; and there must be identity of parties. Two of these essential elements are not present in this case. Therefore, the doctrine cannot apply.
Finally, there is an important distinction to be drawn between a stay and a prohibition, which is in fact what Novopharm and Apotex are seeking. If seeking a stay, they have failed to prove irreparable harm. If seeking a prohibition, they must show the Registrar is acting outside of her jurisdiction.
ANALYSIS
Does the Federal Court have jurisdiction to grant prohibition against the Registrar of Trade-marks, when she is acting within her jurisdiction?
A writ of prohibition lies essentially to prevent an enforcer tribunal from exceeding its jurisdiction. In the context of a trade-mark opposition proceeding, a writ of prohibition will be available where there has been a jurisdictional error or a violation of natural justice or procedural fairness.
As stated by Jerome A.C.J. in McDonald's Corp. et al. v. Registrar of Trade Marks et al.:8
On an application for prerogative relief, my concerns are limited to whether the registrar properly exercised his jurisdiction and whether there has been a denial of natural justice or fairness. As long as these conditions have been fulfilled, the registrar may be entitled to be wrong in law until he has been appealed.9 [My emphasis.]
It is admitted by the applicants that the issue of distinctiveness relied upon in the present application will be raised in the opposition proceedings and that it falls within the jurisdiction of the Registrar of Trade-marks to consider. There is no authority for this Court to prohibit the Registrar from carrying out duties imposed on her by the statute.
The applicants have submitted the cases of Bell v. Ontario Human Rights Commission10 and Cara Operations Ltd. v. Reg. T.M.11 to support the contention that where there is a clear question of law, an applicant is entitled to apply for prohibition rather than waiting to see if the case goes against it.
The case of Bell dealt with an individual who complained to the Ontario Human Rights Commission (the Commission) that he had been denied housing based on discriminatory grounds. The Commission's jurisdiction was limited by The Ontario Human Rights Code, 1961-62.12 Therefore, when a majority of the Supreme Court determined that the matter fell outside of that statute, they held that an order of prohibition could be granted.
In the present case, however, the determination of registrability falls directly within the Registrar's jurisdiction. As a result, Bell does not apply.
The case of Cara Operations, does not support the applicants' contention, either. In fact, this case strongly supports the respondents' case.
The applicant in Cara Operations, brought an application for an order of prohibition to prohibit the Registrar of Trade-marks, in opposition proceedings before him, from receiving and considering as evidence documents filed in previous opposition proceedings between the same parties.
Walsh J. held that the only possible prejudice to the applicant would be the necessity of rearguing the same material.
Moreover even at the risk to applicant of having to eventually re-argue at length before the Registrar at an oral hearing in which applicant will oppose the introduction of this evidence, issues which the applicant successfully argued before the Court of Appeal in the expungement proceedings, it appears to me that it is premature to depart from the detailed procedures set out in the Trade Marks Rules leading to an eventual hearing of the opposition. To require the Registrar to do so would establish a precedent which might not be limited, as applicant contends, to the unusual circumstances of this particular case where the Court of Appeal has already decided that this evidence was inadmissible in expungement proceedings, but might have far reaching consequences. There can be no prejudice to the applicant, other than possible delay and the necessity of further argument on the issue if the matter is left for eventual decision in the first instance by the Registrar after full argument before him, since if he decides that portions of this evidence can be considered in arriving at his decision on the opposition, this decision can always be appealed by applicant.13
Later in the same judgment, Walsh J. states that the Court should not intervene where the statute provides an appeal.
Moreover the Court should not exercise its discretion to grant the prohibitory relief claimed since there is an appeal provided for under s. 56 of the Trade Marks Act.
. . . this Court should not exercise its discretion so as to grant a writ of prohibition against the Registrar and prevent him from considering this issue at the proper time in accordance with the provisions of the Trade Marks Act and Rules.14
The approach taken by Walsh J. is reflective of this Court's treatment of applications for orders of prohibition against the Registrar or Commissioner of Patents in trade-mark and patent cases.15 The case of Rothmans, Benson & Hedges Inc. v. Imperial Tobacco Ltd. provides a useful quote from Heald J.'s decision in Friendly Ice Cream Corp.16 which neatly encapsulates this Court's treatment of the issue:
I have no difficulty whatsoever in concluding that this portion of the statement of claim must be struck out . . . . the Trade Marks Act provides the way in which applications for trade marks may be opposed . . . . [it] contains a complete code of procedure in such circumstances which has to be followed. I know of no authority which would allow the Court to abridge or by-pass these statutory provisions. This, in effect, is what the plaintiff is asking the Court to do . . . .
In my opinion, the applicants are attempting a similar approach. This Court does not have jurisdiction to prohibit the Registrar from performing the task she is statutorily obligated to perform, where there is no evidence that she is acting outside of her jurisdiciton. To find otherwise, would be to permit the applicants to by-pass these statutory provisions.
Does the decision of Reed J. render the matter before the Registrar of Trade-marks res judicata?
The applicants submit that it would be an abuse of process to continue the matter, as the issues have been decided before Reed J., and therefore the matter is res judicata.
There are three main components to the principle of res judicata:
(a) a final judicial decision pronounced by a court of competent jurisdiction,
(b) identity of the action or issue, and
(c) identity of the parties.17
A decision must be final before res judicata can apply. If an appeal is pending, the decision is not final.18
In the present action, the decision of Reed J. is pending before the Federal Court of Appeal. This alone is sufficient to deny the application for prohibition.
In fact, the applicants concede that the decision is not final, but submit that this can be remedied by ordering "interim" relief until the appeal is decided. If the appeal is granted, the prohibition would be lifted.
I do not believe it is appropriate to modify the pre-conditions of the principle of res judicata, in order to "fit" the relief sought by the applicants. The decision is not final pending the determination of the appeal. Therefore, there is no res judicata ; and, there is no abuse of process in the proceedings before the Registrar.
The nature of the relief sought by the applicants is in fact a stay of proceedings, pending the disposition of the appeal. A writ of prohibition is not a stay"different conditions apply. In the present case, a stay could not be granted because of the lack of evidence of irreparable harm, which is an essential component of a stay application.19
Further, there is some doubt as to the applicability of the doctrine of res judicata in opposition proceedings.
In the case of Sunny Crunch Foods Ltd. v. Robin Hood Multifoods Inc.,20 the trade-marks officer [at page 248] clearly stated that "res judicata would not apply in an opposition proceeding." In the case of Walt Disney Co. v. Fantasyland Holdings Inc. , the trade-marks hearings officer cited Sunny Crunch, supra, and expanded on the reasoning.
It is well established that the concept of res judicata does not apply in opposition proceedings [references omitted]. The Registrar is free to decide each case on its own merits. If the Registrar is not to be bound by prior opposition board decisions or Federal Court Appeals, then it follows that passing off decisions of other courts should also not be binding. The issues in other actions, are bound to differ at least slightly, the evidence presented will be different from that presented in the opposition process and the material dates may be different.21
Although this principle has been cited in several opposition decisions, it has not yet been specifically addressed by this Court.
The reasoning of these decisions was based on that of Gibson J. in Molson Companies Ltd. v. Halter,22 where he held that res judicata did not apply to section 44 (now section 45 [as am. by S.C. 1994, c. 47, s. 200]) proceedings before the Registrar, because of the involvement of the public interest. Section 44 (now section 45) of the Trade-marks Act deals with expungement proceedings.
The underlying rationale of these decisions is that the Registrar is responsible for ensuring the purity of the record and that this task should not be tainted by the factually specific arguments of parties to an opposition proceeding. As Gibson J. stated:
Moreover, the doctrine of res judicata or the application of any principle not technically so denominated but having an effect equivalent to res judicata cannot apply to proceedings under s. 44 of the Trade Marks Act. This is so because there is a public interest in proceedings under s. 44 of the Trade Marks Act to maintain and preserve the purity of the register, which public interest transcends the rival claims between parties as to their respective interests, namely , the interest of the registrant and the interest of any other person in the registration.23
It is important to note, however, that the procedure surrounding section 44 (now section 45) is very different from an opposition proceeding. As indicated by Gibson J., an expungement proceeding is not an ordinary proceeding between two parties.
A proceeding, however, under s. 44 of the Trade Marks Act is not an ordinary proceeding inter partes. For example, in such a proceeding before the Registrar of Trade Marks, affidavit or statutory declaration evidence of the registrant only may be filed and considered by the Registrar. No cross-examination may be had on any such affidavit or statutory declaration by any third party or by the Registrar. For these reasons, res judicata or any principle having an equivalent result does not apply.24
Contrast this with an opposition proceeding where both parties may submit affidavit evidence and make representations,25 seek an opportunity to cross-examine the other party's evidence,26 and eventually request an oral hearing.27 In my opinion, res judicata should not bind a party which has not had the opportunity to participate in the proceedings. However, where both parties have been given equal opportunity to present their case and to challenge their opponent's case, then those parties should be bound by the decision rendered. The decision of the Registrar may then be appealed to the Federal Court.
Although this point is not necessary to decide the matter before me, I am of the opinion that res judicata should apply to opposition boards, but only where the pre-conditions are satisfied. However, on a practical level, I note that the number of technical differences in this area of the law will render the principle of little relevance.
Finally, the applicants have submitted the case of Canadian Shredded Wheat Co. Ltd. v. Kellogg Co. of Canada Ltd.28 for the proposition that where an applicant fails in a passing-off action, it is estopped from applying for registration.
In that case, President Maclean held that where the Judicial Committee of the Privy Council had rejected the passing-off claim, it would be an abuse of process to allow the losing party to then bring an application for registration:
In view of the judgment of the Judicial Committee in the infringement action taken by the petitioner, the Objecting Party here having been one of the defendants therein, I feel impelled to the conclusion that the issues raised in the petition are res judicata . . . . It would seem to me that to allow the petition to proceed further would be an abuse of the machinery of the courts, and would offend against the rule that there must be a finality in litigation . . . . I think that the judgment of the Judicial Committee is conclusive of the matter.29
In the present action, as I said earlier, the decision of Reed J. has been appealed to the Court of Appeal, and thus, is not a "final decision", as required by the doctrine of res judicata . Therefore, this case can be distinguished from Canadian Shredded Wheat, supra, since Reed J.'s judgment is not "conclusive of the matter."
For these reasons, the application for prohibition is dismissed.
1 R.S.C., 1985, c. T-13.
2 Eli Lilly and Co. v. Novopharm Ltd. (1997), 147 D.L.R. (4th) 673 (F.C.T.D.), at p. 719.
3 Ibid., at p. 719.
4 Ibid., at p. 721.
5 Ibid., at p. 724.
6 A-391-97, A-392-97 and A-393-97.
7 Order of Rothstein J. (30 June 1997).
8 (1987), 15 C.P.R. (3d) 462 (F.C.T.D.).
9 Ibid., at p. 470.
10 [1971] S.C.R. 756.
11 (1985), 10 Admin. L.R. 27 (F.C.T.D.).
12 S.O. 1961-62, c. 93.
13 Cara Operations, supra, note 11, at p. 38.
14 Ibid., at pp. 39-40.
15 Eli Lilly and Co. v. Canada (Commissioner of Patents) (1992), 42 C.P.R. (3d) 34 (F.C.T.D.); Anheuser-Busch, Inc. v. Carling O'Keefe Breweries of Canada Limited, [1983] 2 F.C. 71 (C.A.) Rothmans, Benson & Hedges Inc. v. Imperial Tobacco Ltd. (1997), 74 C.P.R. (3d) 494 (F.C.T.D.).
16 Friendly Ice Cream Corp. v. Friendly Ice Cream Shops Ltd., [1972] F.C. 712 (T.D.), at p. 716.
17 J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at pp. 990-991.
18 Ibid., at p. 993, citing Barwell Food Sales Inc. v. Snyder & Fils Inc. (1988), 38 C.P.C. (2d) 192 (Ont. H.C.).
19 ;Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.
20 (1982), 70 C.P.R. (2d) 244 (T.M.O.B.).
21 Walt Disney Co. v. Fantasyland Holdings Inc. (1977), 77 C.P.R. (3d) 356 (T.M.O.B.), at p. 364.
22 (1976), 28 C.P.R. (2d) 158 (F.C.T.D.).
23 Ibid., at p. 181.
24 Ibid.
25 Trade-marks Act, R.S.C., 1985, c. T-13, s. 38(7) [as am. by S.C. 1993, c. 15, s. 66].
26 Trade-marks Regulations (1996), [SOR/96-195], s. 44.
27 Trade-marks Act, R.S.C., 1985, c. T-13, s. 38.
28 [1939] Ex. C.R. 58.
29 Ibid., at pp. 62-63.