Date: 20000906
Dockets: T-964-93
T-966-93
T-970-93
OTTAWA, Ontario, September 6, 2000
BEFORE: Rouleau J.
IN RE ss. 45 and 56 of the Trade-Marks Act
(R.S.C. 1985, c. T-13)
IN RE registration TMA 239,600 of a trade mark
CORDON BLEU ( & Design)
IN RE registration TMA 199,966 of a trade mark
CORDON BLEU ( & Design)
IN RE registration UCA 15209 of a trade mark
CORDON BLEU
IN RE decisions by the Registrar of Trade-Marks
on March 1, 1993
Between:
CORDON BLEU INTERNATIONAL LTÉE/
CORDON BLEU INTERNATIONAL LTD.
Appellant
And:
RENAUD COINTREAU & CIE
Respondent
JUDGMENT
[1] The appeal is allowed in part.
P. ROULEAU
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000906
Dockets: T-964-93
T-966-93
T-970-93
IN RE ss. 45 and 56 of the Trade-Marks Act
(R.S.C. 1985, c. T-13)
IN RE registration TMA 239,600 of a trade mark
CORDON BLEU ( & Design)
IN RE registration TMA 199,966 of a trade mark
CORDON BLEU ( & Design)
IN RE registration UCA 15209 of a trade mark
CORDON BLEU
IN RE decisions by the Registrar of Trade-Marks
on March 1, 1993
Between:
CORDON BLEU INTERNATIONAL LTÉE/
CORDON BLEU INTERNATIONAL LTD.
Appellant
And:
RENAUD COINTREAU & CIE
Respondent
REASONS FOR JUDGMENT
ROULEAU J.
[1] This is an appeal from a decision by the Registrar of Trade-Marks dated March 1, 1993, striking out in part registrations UCA 15209, TMA 199,966 and TMA 239,600 for the trade mark CORDON BLEU, pursuant to s. 45 of the Trade-Marks Act, R.S.C. 1985, c. T-13 (hereinafter "the Act").
[2] Cordon Bleu International Ltd. (hereinafter "the appellant"), duly incorporated pursuant to the laws of the Parliament of Canada, is a business manufacturing, selling and distributing various types of food and other products both at wholesale and retail. Additionally, it is actively developing new products and methods of manufacturing food products and is developing new recipes and food suggestions.
[3] The appellant's trade marks, Nos. UCA 15209, TMA 199,966 and TMA 239,600, were entered in the Register of Trade-Marks for the following wares:
| REGISTRATION / ENREGISTREMENT No. UCA 15209 |
| TRADEMARK / MARQUE DE COMMERCE |
| CORDON BLEU |
| WARES / MARCHANDISES: |
| (4) Meat, poultry and fish of all kinds whether combined with other ingredients or not in cans, jars or other containers; sandwich spreads; sauces and gravies, condiments; fruit juices; soups and preparations therefor; pork and beans; canned spaghetti and macaroni; vegetables in cans and other containers; canned and otherwise preserved fruits; pickles; jams, jellies and preserves; sugar and peanut butters. (5) Cheeses. (6) Vegetable juices and vegetable pastes. (7) Meat extracts and maple essence. (8) Coffee and tea; bread; syrups and ice cream; desserts, pie fillings, cake mixes, puddings, icings and topping. (9) Pickled eggs. (10) Shortening, margarine, vegetable oil and baking chocolate; yeast and baking soda; mineral water; vinegar; powdered and condensed milk; baby foods, namely strained and/or pureed meat, vegetables and fruits in cans, jars and other containers; biscuits and crackers; cereals; instant chocolate beverage mix; pop corn; pasta of all kinds; honey and molasses; salad dressing and mayonnaise. (11) Soaps, detergents and waxes. (12) Table napkins. (13) Pet foods. (14) Printed publications, namely: cookbooks. |
| REGISTRATION / ENREGISTREMENT No. TMA 199,966 |
| [DESIGN] |
| COLOUR CLAIM / REVENDICATION DE COULEUR: |
| The words CORDON BLEU are linked in a special lettering design and appear in white on any contrasting color background. |
| WARES / MARCHANDISES: |
| (1) Meat, poultry and fish of all kinds whether combined with other ingredients or not in cans, jars or other containers; sandwich spreads; sauces and gravies; condiments; fruit juices; soups and preparations therefor; pork and beans; canned spaghetti and macaroni; vegetables in cans and other containers; canned and otherwise preserved fruits; pickles; jams, jellies and preserves; sugar and peanut butters, vegetable juices and vegetable pastes. (2) Cheeses. (3) Meat extracts and maple essence. (4) Coffee and tea; bread; syrups and ice cream; desserts, pie fillings, cake mixes, puddings, icings and toppings. (5) Pickled eggs. (6) Shortening, margarine, vegetable oil and baking chocolate; yeast and baking soda; mineral water; vinegar; powdered and condensed milk; baby foods, namely: vegetables and fruits in cans, jars and other containers; biscuits and crackers; cereals; instant chocolate beverage mix; pop corn; pasta of all kinds; honey and molasses; salad dressing and mayonnaise; detergents and waxes; table napkins; pet foods. |
| REGISTRATION / ENREGISTREMENT NO. TMA 239,600 |
| [DESIGN] |
| WARES / MARCHANDISES: |
| (1) Meat, poultry and fish of all kinds whether combined with other ingredients or not in cans, jars or other containers; sandwich spreads; sauces and gravies; condiments; fruit juices; soups and preparations therefor; pork and beans; canned spaghetti and macaroni; vegetables in cans and other containers; canned and otherwise preserved fruits; pickles; jams, jellies and preserves; sugar and peanut butters, vegetable juices and vegetable pastes. (2) Cheeses. (3) Meat extracts and maple essence. (4) Coffee and tea; bread; syrups and ice cream; desserts, pie fillings, cake mixes, puddings, icings and toppings. (5) Pickled eggs. (6) Shortening, margarine, vegetable oil and baking chocolate; yeast and baking soda; mineral water; vinegar; powdered and condensed milk; baby foods, namely: strained and/or pureed meat, vegetables and fruits in cans, jars and other containers; biscuits and crackers; cereals; instant chocolate beverage mix; pop corn; pasta of all kinds; honey and molasses; salad dressing and mayonnaise; detergents and waxes; table napkins; pet foods. |
[4] On October 12, 1988, at the request of RENAUD COINTREAU & CIE (hereinafter "the respondent"), three notices were issued to the appellant by the Registrar of Trade-Marks pursuant to s. 45 of the Act in respect of registrations UCA 15209, TMA 199,966 and TMA 239,600 for the mark CORDON BLEU.
[5] In response to the Registrar's notices, the appellant filed three affidavits by its president and general manager, J.R. Ouimet.
[6] In his affidavit Mr. Ouimet indicated that the mark CORDON BLEU was used in Canada in the normal course of trade in association with each of the wares mentioned in the registration prior to and on the date of the notices issued by the Registrar.
[7] To illustrate the way in which the mark CORDON BLEU has been used in Canada in the normal course of trade since at least 1940, Mr. Ouimet provided a representative sample of invoices from a distributor of CORDON BLEU products showing use of the mark CORDON BLEU in association with various products, and labels having the mark in question on them. The invoices submitted in each case were identical, but the labels differed.
[8] In her decision of March 1, 1993 the Registrar found the evidence insufficient as to the use of the trade marks in association with all the wares specified in the registration. She said the following:
| [TRANSLATION] |
| As to the 1988 invoices, I am persuaded that they establish use of the listed mark in the normal course of trade in association with the following wares: "meat, poultry whether combined with other ingredients or not in cans, jars, or other containers", since the products pork, chicken and veal; ham, bacon, tomato, veal; flakes of ham; deboned chicken in boxes, appearing in the invoices are wares which would fall into this category. |
| The applicant maintained that the category of wares "meat, poultry and fish of all kinds whether combined or not . . . in cans, jars and other containers" represented some 18 different combinations and the holder had not established use of the mark in association with each one. In my view, this category covers meat, poultry and fish (use in association with fish was not established) and, from the wording of the registration, I consider that the various combinations are optional. Consequently, as use of the mark was established in association with meat and poultry, but not with fish, I feel that the registration should be amended to delete the reference to "fish" in this category. |
| The 1988 invoices further show use of the trade mark in association with the following wares: |
| "sandwich spreads" (see invoice No. 090403, page 4, "pâté à sandwich"); "sauces and gravies" (see in the invoices references to "sauces sandwichs chauds, sauces Bar-B-Q et sauce à l'oignon" (which would fall into this category); |
| "condiments" (see reference to "horseradish" in invoice dated June 28, 1988). |
| Although the holder submitted labels involving the wares [TRANSLATION] "pickled eggs" and "pork tongues", the 1988 invoices did not show the sale of such wares having the trade mark CORDON BLEU. Further, as the labels bear the name of J. René Ouimet Ltée, which was changed to J.R. Ouimet Inc. on December 18, 1985 (see the Register of registered users), I conclude that they are not recent. |
| As to the 1987 invoices, in my opinion they establish the sale of all the wares except for "fish" and printed publications (the latter wares appear in registration No. UCA 15209). Although Mr. Ouimet filed as Exhibit JRO-25-4 a copy of the cookbook, there was no clear proof that the sale of such wares was made immediately before the date of the notice or at any other time. |
| As to the wares "fruit juices, soups and preparations therefor; pork and beans; canned spaghetti and macaroni; vegetables in cans and other containers; canned or otherwise preserved fruits; pickles; jams, jellies and preserves; sugar and peanut butters, vegetable juices and vegetable pastes; cheeses, syrups and ice cream; desserts, pie fillings, cake mixes, puddings, icings and toppings; pickled eggs; shortening, margarine, vegetable oil and baking chocolate; yeast and baking soda; mineral water; vinegar; powdered and condensed milk; baby foods; biscuits and crackers; cereals; instant chocolate beverage mix, popcorn; pasta of all kinds; honey and molasses; salad dressing and mayonnaise; soaps, detergents and waxes; table napkins; pet foods", which appear in the 1987 invoices, there is nothing to show that there were transactions involving the latter in 1988 or immediately prior to the date of the notice. Further, Mr. Ouimet did not clearly indicate that these wares in particular were the subject of commercial transactions that took place immediately prior to the date of the notice. |
| Consequently, it would appear that use of the mark in association with the majority of the wares dates back to a little more than a year prior to the date of the notice. As I see it, although the date at which the notice mentioned in s. 45 is given is not strictly dependent on the date at which use of a registered trade mark was established (see Molson v. Moosehead, 32 C.P.R. (3d) 363, at 379), and although the registered owner is not required to provide overwhelming evidence (in fact, proof of a single sale may suffice in some cases), I consider that in a case like the one here, where the holder is dealing in food products, it is to be expected that such wares are sold regularly. Consequently, I would have expected the holder to provide evidence of the sale of most of the wares shortly before the date of the notice or at least to have provided an explanation of the absence of evidence of more recent use in association with the majority of the wares. As there was no explanation from Mr. Ouimet in this regard, I conclude that the transactions which took place over a year before the date of the notice are not recent enough to meet the criterion of use at the relevant date. If the holder had described the rate of sale of these wares, I might have come to a different conclusion. However, Mr. Ouimet chose to provide no details about the invoices submitted, apart from saying that they were representative. |
| As to the said representative nature of the invoices, there was no evidence or statement to clearly establish that there were transactions subsequent to the ones in 1987 in respect of the majority of the wares. |
[9] She eventually concluded that the evidence before her was subject to obvious omissions and that Mr. Ouimet's statements lacked clarity. She concluded as follows:
| [TRANSLATION] |
| I therefore conclude that the use of the trade marks in question in the three aforementioned registrations was established only in respect of the following wares: |
| meat and poultry of all kinds whether combined with other ingredients or not in cans, jars or other containers; sandwich spreads; sauces and gravies; condiments. |
| As I cannot conclude there was use on the relevant date in association with the other wares, I consider that those should be deleted from the registrations. [at 52] |
[10] On the respondent's argument that the trade marks used differed from those registered, the Registrar considered that the use established in each case was that of the trade mark registered.
[11] Following that decision, the appellant filed three notices of appeal on May 3, 1993. In support of those appeals the appellant submitted complementary evidence pursuant to the provisions of s. 56(5) of the Act and, in addition to the three affidavits previously filed with the Registrar, on April 30, 1993 filed another affidavit by J.R. Ouimet. In that affidavit Mr. Ouimet sought to explain or to provide sufficient evidence to resolve the questions raised by the Registrar.
[12] Exhibit O-1, filed by Mr. Ouimet in his new affidavit, was a copy of various invoices dating from 1988 for the sale inter alia of the wares struck out by the Registrar in respect of the three registrations in question. This evidence was not submitted to the Registrar. The appellant submitted that the proof of use filed by Mr. Ouimet justified retaining in the Register, in respect of the three disputed registrations, the following products mentioned therein:
| fruit juices; soups and preparations therefor; pork and beans; canned spaghetti and macaroni; canned and otherwise preserved fruits; jams; jellies and preserves; sugar and peanut butters; cheeses; vegetable juices and vegetable pastes; maple essence; coffee and tea; vegetables and fruits in cans, jars or other containers; biscuits and crackers; cereals; popcorn; pasta of all kinds; |
bread; syrups and ice cream; pie fillings; cake mixes; puddings; icings and toppings; pickled eggs; shortening; margarine; baking chocolate; yeast and baking soda; mineral water; vinegar; powdered and condensed milk; honey and molasses; salad dressing and mayonnaise; soaps, detergents and waxes; table napkins; pet foods. |
[13] All the 1988 invoices for J.R. Ouimet Inc. were issued in August and September 1988, the period immediately prior to the issuing of the notices under s. 45.
[14] The respondent did not dispute the Registrar's conclusions regarding the wares which were validly registered. However, it argued that unlike the situation for the other two registrations, J.R. Ouimet Inc. was never listed as the registered user of the trade mark TMA 239,000 [sic] pursuant to s. 50 of the Act, or at least that no evidence of such registration was filed. As J.R. Ouimet Inc. had never been listed the benefits of use of the trade mark CORDON BLEU accrued only to the latter, not to the appellant. The respondent submitted that the appellant had not been able to meet the requirements of s. 45 for all wares which were at issue, except for the wares "pickled eggs" and "pork". It therefore asked that the other wares be struck from the Register with respect to registration TMA 239,000.*
[15] The respondent further argued that the appellant had not proven that the wares sold bore the mark CORDON BLEU. It submitted that the appellant should have filed labels for all the wares, not just for the wares "pickled eggs" and "pork".
[16] Finally, the respondent indicated that the appellant had filed no evidence for the sale of the following products:
| fish vegetables in cans and other containers pickles meat extracts desserts vegetable oil strained and/or pureed meat |
instant chocolate beverage mix printed publications, namely cookbooks macaroni margarine baking soda mayonnaise |
[17] It therefore requested that all products, except for the wares "pickled eggs" and "pork", be struck out.
[18] At the time the expiry notices were issued s. 45 (then numbered 44) read as follows:
| 44. (1) The Registrar may at any time and, at the written request made after three years from the date of the registration by any person of the registration by any person who pays the prescribed fee shall, unless he sees good reason to the contrary, give notice to the registered owner requiring him to furnish within three months an affidavit or statutory declaration showing with respect to each of the wares or services specified in the registration, whether the trade mark is in use in Canada and, if not, the date when it was last so in use and the reason for the absence of such use since such date. |
44. (1) Le registraire peut, à tout moment, et doit, sur la demande écrite présentée après trois années à compter de la date de l'enregistrement, par une personne qui verse les droits prescrits, à moins qu'il ne voie une raison valable à l'effet contraire, donner au propriétaire inscrit un avis lui enjoignant de fournir, dans les trois mois, un affidavit ou une déclaration statutaire indiquant, à l'égard de chacune des marchandises ou de chacun des services que spécifie l'enregistrement, si la marque de commerce est employée au Canada et, dans la négative, la date où elle a été ainsi employée en dernier lieu et la raison de son défaut d'emploi depuis cette date. |
| (2) The Registrar shall not receive any evidence other than such affidavit or statutory declaration but may hear representations made by or on behalf of the registered owner of the trade mark or by or on behalf of the person at whose request the notice was given. |
(2) Le registraire ne doit recevoir aucune preuve autre que cet affidavit ou cette déclaration statutaire, mais il peut entendre des représentations faites par ou pour le propriétaire inscrit de la marque de commerce, ou par ou pour la personne à la demande de qui l'avis a été donné. |
| (3) Where, by reason of the evidence furnished to him or the failure to furnish such evidence, it appears to the Registrar that the trade mark, either with respect to all of the wares or services specified in te registration or with respect to any of such wares or services, is not in use in Canada and the absence of use has not been due to special circumstances that excuse such absence of use, the registration of such trade mark is liable to be expunged or amended accordingly. |
(3) Lorsqu'il apparaît au registraire, en raison de la preuve à lui fournir ou de l'omission de fournir une telle preuve, que la marque de commerce, soit à l'égard de la totalité des marchandises ou services spécifiés dans l'une quelconque de ces marchandises ou de l'un quelconque de ces services, n'est pas employés au Canada, et que le défaut d'emploi n'a pas été attribuable à des circonstances spéciales qui le justifient, l'enregistrement de cette marque de commerce est susceptible de radiation ou modification en conséquence. |
| (4) When the Registrar reaches a decision as to whether or not the registration of the trade mark ought to be expunged or amended, he shall give notice of his decision with the reasons therefor to the registered owner of the trade mark and to the person at whose request the notice was given. |
(4) Lorsque le registraire en arrive à une décision sur la question de savoir s'il y a lieu ou non de radier ou de modifier l'enregistrement de la marque de commerce, il doit notifier sa décision avec les motifs pertinents, au propriétaire inscrit de la marque de commerce et à la personne à la demande de qui l'avis a été donné. |
| (5) The Registrar shall act in accordance with his decision if no appeal therefrom is taken within the time limited by this Act or, if an appeal is taken, shall act in accordance with the final judgment given in such appeal. |
(5) Le registraire doit agir en conformité de sa décision si aucun appel n'est interjeté dans le délai prévu par la présente loi ou, si un appel est interjeté, il doit agir en conformité du jugement définitif rendu dans cet appel. |
[19] The essential point in the appeal at bar is whether the appellant has established that the trade mark CORDON BLEU was used in Canada at the time the Registrar's notice was sent out.
[20] In Meredith & Finlayson v. Canada (Registrar of Trade-marks) (1991), 40 C.P.R. (3d) 409 (F.C.A.), Hugessen J. stated that s. 45 of the Act was a simple and rapid method of striking obsolete marks from the Register. The procedure involving s. 45 is a simple procedure to rid the Register of the registrations of trade marks that are not bona fide claimed by their owners as marks in use. In Austin Nichols & Co. v. Cinnabon, [1998] 4 F.C. 569, it was stated that the test that must be met under s. 45 is "not a harsh one". Establishing a single sale in the normal course of commercial activity may suffice to prove use of a trade mark (Philip Morris Inc. v. Imperial Tobacco Ltd., [1987] F.C.J. No. 26 - aff'd. Philip Morris Inc. v. Imperial Tobacco Ltd., [1987] F.C.J. No. 848).
[21] At the same time, in Boutiques Progolf Inc. v. Canada (Registrar of Trade-marks), [1993] F.C.J. No. 1363, Létourneau J.A. stated that "the aim of that section [45] is not to determine the rights of the parties to a trade mark, which is done under section 57 of the Act, but to make it possible to trim the Register of Trade Marks by getting rid of dead wood, that is, by removing information from it that has become pointless and outdated because the registered trade mark is not in use".
[22] Létourneau J.A. went on to say:
| I do not believe that section 45 requires continuous use of the trade mark, that is, use that is not interrupted over time . . . an owner need not furnish evidence of weekly, monthly or even yearly use. It is sufficient to furnish evidence of use in the normal course of its trade. Like my colleague Marceau J.A., however, I believe that section 45 requires that an owner furnish evidence of use at the time when the Registrar's notice is sent . . . |
| What section 45 requires is evidence of a degree of current or contemporaneous use, that is, evidence of use at the actual time of the Registrar's notice or use in the still recent past, so that it can be said that the use is current or contemporaneous with the Registrar's notice. In the case of a very specialized or seasonal business, where the business practices may differ, it cannot be required and expected that there will be the same contemporaneous or current use as in the case, for example, of a trade mark in the food industry, where items are consumed frequently and regularly. |
[23] As the appellant pointed out in its memorandum, the Federal Court is usually hesitant to substitute its own decision for that made by the Registrar unless there is in the record before the Court evidence that the Registrar did not consider. Accordingly, when additional evidence is submitted the Court will generally consider the case as if it were a trial de novo and may reverse the Registrar's decision if the new evidence so requires (Glen-Warren Productions Ltd. v. Gertex Hosiery Ltd. (1990), 29 C.P.R. (3d) 7, (F.C.T.D. Dubé J.), at 11; Johann Becher ohg Likorfabrik v. Registrar of Trade-marks (1997), 71 C.P.R. (3d) 461, (F.C.T.D., Weston J.) at 464-465).
[24] On reading the Registrar's decision, in particular regarding the wares "pickled eggs" and "pork", it appears that it is the presence of the wares on the invoices, not the labels filed, which persuaded her the mark was in use at the time the notices were sent out. In the circumstances, therefore, the appellant did not have to file labels for all the wares.
[25] After a careful review of the invoices filed with Mr. Ouimet's new affidavit, I find that sales were registered some weeks before the Registrar's notices for the following wares:
| Fruit juices (J.R., p. 22) Soups (J.R., p. 21) Pork (J.R., p. 27) Beans (J.R., p. 29) Canned spaghetti (J.R., p. 21) Macaroni (J.R., p. 21) Canned and otherwise preserved fruits (J.R., p. 23) Jams (J.R., p. 22) Jellies (J.R., p. 28) Sugar (J.R., p. 22) Peanut butter (J.R., p. 21) Cheeses (J.R., p. 21) Vegetable juices (J.R., p. 22) Vegetable pastes (J.R., p. 19) Maple essence (J.R., p. 21) Coffee (J.R., p. 21) Tea (J.R., p. 28) Bread (J.R., p. 24) Syrup (J.R., p. 22) Ice cream (J.R., p. 29) Pie fillings (J.R., p. 19) Cake mixes (J.R., p. 29) Puddings (J.R., p. 28) Icings (J.R., p. 29) Toppings (J.R., p. 28) |
Pickled eggs (J.R., p. 24) Shortening (J.R., p. 22) Baking chocolate (J.R., p. 19) Yeast (J.R., p. 21) Baking soda (J.R., p. 21) Mineral water (J.R., p. 19) Vinegar (J.R., p. 25) Powdered milk (J.R., p. 21) Condensed milk (J.R., p. 19) Vegetables (J.R., p. 30) Fruits in cans, jars or other containers (J.R., p. 22) Biscuits (J.R., p. 23) Crackers (J.R., p. 21) Cereals (J.R., p. 23) Popcorn (J.R., p. 19) Pasta of all kinds (J.R., p. 21) Honey (J.R., p. 21) Molasses (J.R., p. 25) Salad dressing (J.R., p. 22) Soaps (J.R., p. 25) Detergents (J.R., p. 22) Waxes (J.R., p. 25) Table napkins (J.R., p. 22) Pet foods (J.R., p. 23)
|
[26] Contrary to what was argued by the respondent, the appellant also provided proof for the following wares:
| Fish (J.R., pp. 20 and 30) Vegetables in cans and other containers (J.R., pp. 21 and 30) Pickles (J.R., p. 29) Meat extracts (J.R., p. 21) Desserts (J.R., p. 22) Vegetable oil (J.R., p. 28) |
Strained and/or pureed meat (J.R., p. 28) Instant chocolate beverage mix (J.R., pp. 19 and 21) Macaroni (J.R., p. 29) Margarine (J.R., pp. 19 and 25) Mayonnaise (J.R., pp. 22 and 25) |
| [27] However, I found no proof for sale of the following wares: |
Printed publications, namely cookbooks
Baking soda
[28] The appellant thus demonstrated use of the wares listed above, struck out by the Registrar, in association with the trade mark CORDON BLEU at the time the notice was sent out. I consider that the Register should be amended accordingly and only the two items for which there is no proof of sale or use struck out.
[29] The argument regarding registration of the J.R. Ouimet company as the registered user of the trade mark CORDON BLEU does not need to be dealt with at great length. The Registrar concluded as follows:
[TRANSLATION]
| The invoices submitted as exhibits originated with the holder's distributor: accordingly, this is hearsay tending to show use of the mark by the holder. Nevertheless, the invoices clearly establish that J.R. Ouimet Inc. is a distributor of food products, including CORDON BLEU products. |
| At the top of these invoices the following trade marks are mentioned: CORDON BLEU, GAZA, PARIS PATE and TIBO. It is thus clear that J.R. Ouimet also distributes wares having trade marks other than CORDON BLEU. (at 4) |
[30] In my opinion, the Registrar had already accepted, at least tacitly, that the J.R. Ouimet company was a registered user, and as such the use by it of the trade mark CORDON BLEU would benefit the holder of the mark, the president and general manager of which is, incidentally, J.R. Ouimet.
[31] The appeal is accordingly allowed in part.
| P. ROULEAU JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-964-93
STYLE OF CAUSE: CORDON BLEU INTERNATIONAL LTÉE et al. -AND - RENAUD COINTREAU & CIE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 27, 2000
REASONS FOR JUDGMENT BY: ROULEAU J.
DATED: September 6, 2000
APPEARANCES:
Barry Gamache FOR THE APPELLANT
François Guay FOR THE RESPONDENT
SOLICITORS OF RECORD:
Léger, Robic & Richard FOR THE APPELLANT
Montréal, Quebec
Smart & Biggar FOR THE RESPONDENT
Montréal, Quebec
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-966-93
STYLE OF CAUSE: CORDON BLEU INTERNATIONAL LTÉE et al. -AND - RENAUD COINTREAU & CIE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 27, 2000
REASONS FOR JUDGMENT BY: ROULEAU J.
DATED: September 6, 2000
APPEARANCES:
Barry Gamache FOR THE APPELLANT
François Guay FOR THE RESPONDENT
SOLICITORS OF RECORD:
Léger, Robic & Richard FOR THE APPELLANT
Montréal, Quebec
Smart & Biggar FOR THE RESPONDENT
Montréal, Quebec
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-970-93
STYLE OF CAUSE: CORDON BLEU INTERNATIONAL LTÉE et al. -AND - RENAUD COINTREAU & CIE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 27, 2000
REASONS FOR JUDGMENT BY: ROULEAU J.
DATED: September 6, 2000
APPEARANCES:
Barry Gamache FOR THE APPELLANT
François Guay FOR THE RESPONDENT
SOLICITORS OF RECORD:
Léger, Robic & Richard FOR THE APPELLANT
Montréal, Quebec
Smart & Biggar FOR THE RESPONDENT
Montréal, Quebec
__________________
* This registration appears in paras. 1 et seq. as 239,600 - TR.