A-114-74
Dr. Pepper Company (Appellant) (Applicant to
Intervene)
v.
Pepsico, Inc., and Pepsi-Cola Canada Ltd.
(Respondents) (Appellants)
and
The Registrar of Trade Marks (Respondent)
(Respondent)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, March 12, 1975.
Trade Marks—Practice—Appellant filing application to
register trade mark—Registrar rejecting statement of opposi
tion by respondent companies—Appeal to Trial Division—
Name of appellant company not appearing in style of cause—
Trial Division dismissing application of appellant to be added
as intervener—Appeal—Trade Marks Act, R.S.C. 1970, c.
T-10, s. 59(2).
Appellant appeals from a judgment of the Trial Division
dismissing its application to intervene in an appeal to the Trial
Division from a decision of the Registrar of Trade Marks.
Appellant filed an application to register a trade mark;
respondents' statement of opposition was rejected by the Regis
trar and respondents appealed to the Trial Division. Notice was
served on appellant, but its name did not appear in the style of
cause. Appellant then applied to be added as an intervener. The
application was dismissed by the Trial Division.
Held, dismissing the appeal, the Company was served with
notice and was, under section 59(2) of the Trade Marks Act,
entitled to file a reply in spite of the fact that its name was not
in the style of cause. Intervention was unnecessary. Quite apart
from section 59(2), Dr. Pepper Company is a natural party to
the appeal, for the application made by the Pepsi companies
and dismissed by the Registrar was not an isolated proceeding.
The issue to be determined by the Trial Division is one between
appellant, an applicant for a trade mark, and the Pepsi compa
nies, who opposed the application.
APPEAL.
COUNSEL:
R. G. McClenahan, Q.C., and A. Butler for
appellant.
J. Clark, Q.C., and D. Lack for respondents
(appellants).
D. Friesen for respondent (respondent).
SOLICITORS:
Gowling & Henderson, Ottawa, for appellant.
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery & Renault, Montreal, for
respondents (appellants).
Deputy Attorney General of Canada for
respondent (respondent).
The following are reasons for judgment deliv
ered orally in English by
PRATTE J.: Dr. Pepper Company appeals from a
judgment of the Trial Division dismissing its
application to intervene in an appeal to the Trial
Division from a decision of the Registrar of Trade
Marks.
In May 1973, Dr. Pepper Company filed with
the Canadian Trade Marks Office an application
for registration of a trade mark. After that
application had been advertised, the respondents,
Pepsico, Inc. and Pepsi-Cola Canada Ltd. filed a
statement of opposition with the Registrar who
rejected it summarily, under section 37(4) of the
Trade Marks Act, on the ground that it did not
raise a substantial issue for decision. The Pepsi
companies appealed from that decision to the Trial
Division under sections 56 and 59 of the statute.
Their notice of appeal was served on Dr. Pepper
Company, the name of which, however, did not
appear in the style of cause which mentioned the
Registrar of Trade Marks as being the respondent.
The fact that its name was absent from the style of
cause prompted Dr. Pepper Company to apply for
an order that it be added as an intervener in that
appeal from the decision of the Registrar. It is
from the judgment of the Trial Division dismissing
that application that this appeal is brought.
In my view, the application of Dr. Pepper Com
pany was properly dismissed by the trial judgment
for reasons different from those he gave.
It is common ground that Dr. Pepper Company
was served with the notice of appeal of the Pepsi
companies. Then, under section 59(2) of the Trade
Marks Act, Dr. Pepper Company was, in my view,
entitled to file a reply to the notice of appeal. In
other words, that company was a party to the
appeal in spite of the fact that its name did not
appear in the style of cause. There was, therefore,
no need for that company to intervene in the
appeal and, consequently, its application to the
Trial Division should have been dismissed as
unnecessary.
Miss Clark argued on behalf of the Pepsi com
panies that, in the circumstances of this case,
section 59(2) did not have the effect of giving to
Dr. Pepper Company the status of a party to the
appeal. She said that in this case Dr. Pepper
Company is a stranger to the question to be deter
mined by the Trial Division, which question,
according to her, is merely an issue between the
Pepsi companies and the Registrar. In my view,
that argument must be rejected. The opposition
made by the Pepsi companies and dismissed by the
Registrar was not a proceeding that stood by itself;
it was an opposition to the granting by the Regis
trar of the application of Dr. Pepper Company. If
the opposition made by the Pepsi companies is
viewed in that light, it seems to me that the issue
to be determined by the Trial Division is an issue
between Dr. Pepper Company, the applicant for a
trade mark, and the Pepsi companies, which
opposed that application. Aside from all tech
nicalities, Dr. Pepper Company then appears as
the natural respondent in the appeal of the Pepsi
companies. In other words, apart from section
59(2), it can be considered as being a party to the
appeal.
For these reasons, I would dismiss the appeal
but, in the circumstances, without costs.
* * *
JACKETT C.J. and RYAN J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.