Federal Court Decisions

Date: 20000515

Docket: T-1467-97

Vancouver, British Columbia, Monday the 15^th day of May, 2000

PRESENT:      THE HONOURABLE MR. JUSTICE CAMPBELL

IN THE MATTER OF Section 45 of the Tradmarks Act R.S.C. 1985, C. T-13, as amended,

and IN THE MATTER OF an Appeal from the Decision of the Registrar of Trade-marks dated May 6, 1997, with respect to TMA 351 , 913 for THUNDERBIRD & DESIGN in the name of Cadumaus Enterprises Ltd.

BETWEEN:

     CADUMAUS ENTERPRISES LTD

     Appellant

     - and -

     FORD MOTOR COMPANY

     Respondent

     REASONS FOR ORDER AND ORDER

     The Appellant appeals from a decision of the Registrar of Trade-marks ("the Registrar"), dated 6 May 1997 made pursuant to Section 45 of the Trade-marks Act , in which the Registrar advised that, by reason of the failure of the Appellant to file evidence of use in response to a notice to do so issued on 19 December 1996, the Appellant"s trade-mark Registration No. 351,913 for the trade-mark THUNDERBIRD & DESIGN would be expunged.

     I accept that, as the notice sent by the Registrar was not addressed to the Appellant"s current place of business, the Appellant was unaware of the Section 45 proceedings. The Appellant did not become aware of the Section 45 proceedings until on or about 24 June 1997.

     On the evidence contained in the affidavit of Mr. Toyojiro Hirano, the owner and president of the Appellant, I find that the Appellant, through its licensee, Flyer Hooks Co. Ltd., as of the date of the Section 45 notice and the relevant time period within which the Appellant was to establish use of the trade-mark, namely 19 December 1993 to 19 December 1996, was using and is currently using the trade-mark in association with all of the wares described in the Registration, namely sweaters, vests, tuques, scarves and purses.

     Accordingly, I hereby set aside the decision of the Registrar of Trade-marks dated 6 May 1997 expunging Registration No. 351,913.

                             (Sgd.) "Douglas Campbell"

                                 Judge

May 15, 2000

Vancouver, British Columbia

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.:      T-1467-97

STYLE OF CAUSE:      Cadumaus Enterprises Ltd

     v.

     Ford Motor Company

PLACE OF HEARING:      Vancouver, British Columbia

DATE OF HEARING:      May 15, 2000

REASONS FOR ORDER AND ORDER OF CAMPBELL, J.

DATED:      May 15, 2000

APPEARANCES:

Mr. Bruce M. Green      For the Appellant

SOLICITORS OF RECORD:

Oyen Wiggs Green & Mutala

Intellectual Property Lawyers

Vancouver, BC      For the Appellant