Date: 20001010
Docket: T-613-99
Ottawa, Ontario, this 10th day of October, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
IN THE MATTER OF an Appeal pursuant to Section 56
of the Trade-marks Act, R.S.C. 1985, c. T-13,
from a decision of the Registrar of Trade-marks dated February 5, 1999
in an Opposition by Novopharm Ltd. to Application No. 688,588
for the trade mark Tablet Design filed by Burroughs Wellcome Inc.
and now standing in the name of Glaxo Wellcome Inc.
BETWEEN:
GLAXO WELLCOME INC.
Applicant
- and -
NOVOPHARM LTD.
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an appeal pursuant to section 56 of the Trade-marks Act, R.S.C. Canada 1985, c. 7-13 (the "Act"), of the decision of the Registrar of Trade-marks dated February 5, 1999 wherein the Registrar refused registration of the applicant's distinguishing guise as a trade-mark, subsequent to opposition by the respondent.
BACKGROUND FACTS
[2] Glaxo Wellcome Inc. ("Glaxo") filed an application for registration of a distinguishing guise for use in association with "pharmaceutical preparations employing acyclovir as an active ingredient". This application was amended on March 11, 1992 to state the wares as "pharmaceutical preparations employing acyclovir as an active ingredient, namely tablets".
[3] The distinguishing guise in question is the shape of the tablets containing acyclovir. Acyclovir is an active ingredient in the treatment of herpes zoster. Glaxo markets its tablets under the brand name ZOVIRAX. The guise is a tablet in the shape of a shield with six sides. The application was limited to the shape, and did not indicate that it was restricted to a particular colour, nor any markings on the tablet itself: the distinguishing guise for which registration was sought was the shape: a six sided tablet, shaped as a shield. This guise bore some resemblance to the mark printed on the packaging of the ZOVIRAX medicine.
[4] Novopharm Ltd. ("Novopharm") filed a statement of opposition to the registration on April 13, 1993. The opposition raised eight grounds, two of which were allowed by the Registrar: the guise did not comply with paragraph 13(1)(a) of the Act in that the guise was not inherently distinctive and had not become distinctive through use.
Evidence before the Registrar
[5] Glaxo began selling ZOVIRAX in September, 1986 with the distinguishing guise at issue. Affiants for Glaxo stated that the guise had no functional or utilitarian purpose or advantage. Fifty-six million tablets were sold between August, 1987 and August, 1994 with the average prescription being 59 tablets. According to Glaxo, the company wanted from the beginning for the tablet to have a distinctive shape so as to distinguish their tablet from those of other manufacturers.
[6] Glaxo submitted affidavits from individuals, gynecologists and printed material which made reference to the shape of the tablet, "like a shield". These affiants indicated that they could identify the pills as ZOVIRAX, originating from Glaxo.
[7] The respondent submitted evidence that pharmacists could not identify the pill without the trade-mark ZOVIRAX or the triangle embedding printed on it. Various shield-shaped tablets were shown, but it is conceded that none of these contained acyclovir as active ingredient and none treat herpes zoster.
[8] From this evidence, the Registrar made the following findings: that the distinguishing guise was to a large extent functional and therefore inherently weak (since the guise is the medium by which the product is delivered); the actual shape of the tablet is unique but with many similar tablets, therefore the onus on Glaxo to show distinctiveness is a heavy one; to meet the paragraph 13(1)(a) onus, the applicant must show that most adult Canadians recognize its distinguishing guise as such; the "vast majority" of Canadians are now aware of the shape of the applicant's tablets much less whether the shape functions as a distinguishing guise; Glaxo therefore had failed to meet its paragraph 13(1)(a) onus. The ultimate consumer would not necessarily see the shape of the tablets when making a purchase.
ARGUMENTS
[9] The applicant argues that the decision of the Registrar is only entitled to deference if it is shown that there are no fundamental errors evident in the decision. Further, even if there is no error, the Court is still bound and entitled to decide whether the decision of the Registrar was correct, in situations where there is new evidence adduced at the hearing of the appeal.
[10] The applicant submits that the Registrar erred in law in its application of the legal test in paragraph 13(1)(a) of the Act and in concluding that a distinguishing guise in the shape of wares is weak since it is to a large extent functional. The applicant argues that the paragraph 13(1)(a) test has been met and that the guise has become distinctive, given the evidence of other tablets on the market.
[11] The respondent argues that the decision of the Registrar is entitled to deference on appeal and that the Court should be reluctant to interfere with it unless it is based on some wrong principle. Further, the appeal is only a trial de novo when there is significant new evidence adduced.
[12] The respondent argues that the Registrar was correct in requiring a heavy onus on Glaxo's part. The degree of evidence to show acquired distinctiveness is inversely proportional to the degree of inherent distinctiveness of the mark. The guise at issue is inherently weak since the tablet medium is formulated for swallowing, limiting the options available; the bevelled sides make swallowing easier; and any tablet would appear to a consumer as largely functional.
[13] The respondent claims that the tests applied by the Registrar were correct and there is no evidence that the consuming public recognizes the applied for guise as an indicator of the source of the product. The evidential burden has not been met.
[14] ISSUES
1. What is the standard of review in an appeal pursuant to section 56 of the Trade-marks Act when there is new evidence introduced on appeal?
2. Did the Registrar err in law in holding that to satisfy the paragraph 13(1)(a) test of the Act, the applicant (appellant) is required to show that most adult Canadians recognize the applicant's distinguishing guise?
3. In view of the new evidence filed by the applicant, did the Registrar err in finding the applicant's distinguishing guise to be inherently weak in distinctiveness based on evidence of third party tablets claimed to be similar in shape to the distinguishing guise at issue?
4. Did the Registrar err in holding the evidential standard for registrability under paragraph 13(1)(a) to be met by the applicant in this case to be "even more severe" than other cases?
5. Did the Registrar err in fact and law in finding the applicant had not met the paragraph 13(1)(a) onus of showing its distinguishing guise had become distinctive as of the date of application?
6. Did the Registrar fail to give proper weight to the extent of sales and advertising by the applicant of its tablets bearing its distinguishing guise and the evidence of the physicians and pharmacists?
7. Did the Registrar err in rejecting the application on the basis of the eighth ground of opposition and in so doing, relying on findings relating to distinctiveness under paragraph 13(1)(a) and in also finding that as of the date of opposition the applicant had " . . . failed to satisfy the heavy onus of showing that its guise is distinctive throughout Canada"?
STATUTORY PROVISIONS
| [15] The following provisions of the Act have application: |
| "distinctive", in relation to a trade-mark, means a trade-mark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them; |
« distinctive » Relativement à une marque de commerce, celle qui distingue véritablement les marchandises ou services en liaison avec lesquels elle est employée par son propriétaire, des marchandises ou services d'autres propriétaires, ou qui est adaptée à les distinguer ainsi. |
| "distinguishing guise" means (a) a shaping of wares or their containers, or (b) a mode of wrapping or packaging wares the appearance of which is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him rom those manufactured, sold, leased, hired or performed by others; |
| « signe distinctif » Selon le cas_: a) façonnement de marchandises ou de leurs contenants; b) mode d'envelopper ou empaqueter des marchandises, dont la présentation est employée par une personne afin de distinguer, ou de façon à distinguer, les marchandises fabriquées, vendues, données à bail ou louées ou les services loués ou exécutés, par elle, des marchandises fabriquées, vendues, données à bail ou louées ou des services loués ou exécutés, par d'autres. |
| "trade-mark" means . . . (c) a distinguishing guise, or . . . |
« marque de commerce » Selon le cas_: . . . c) signe distinctif; . . . 12. (1) Subject to section 13, a trade-mark is registrable if it is not (a) a word that is primarily merely the name or the surname of an individual who is living or has died within the preceding thirty years; (b) whether depicted, written or sounded, either clearly descriptive or deceptively misdescriptive in the English or French language of the character or quality of the wares or services in association with which it is used or proposed to be used or of the conditions of or the persons employed in their production or of their place of origin; (c) the name in any language of any of the wares or services in connection with which it is used or proposed to be used; (d) confusing with a registered trade-mark; (e) a mark of which the adoption is prohibited by section 9 or 10; (f) a denomination the adoption of which is prohibited by section 10.1; (g) in whole or in part a protected geographical indication, where the trade-mark is to be registered in association with a wine not originating in a territory indicated by the geographical indication; and (h) in whole or in part a protected geographical indication, where the trade-mark is to be registered in association with a spirit not originating in a territory indicated by the geographical indication. |
| 12. (1) Sous réserve de l'article 13, une marque de commerce est enregistrable sauf dans l'un ou l'autre des cas suivants_: a) elle est constituée d'un mot n'étant principalement que le nom ou le nom de famille d'un particulier vivant ou qui est décédé dans les trente années précédentes; b) qu'elle soit sous forme graphique, écrite ou sonore, elle donne une description claire ou donne une description fausse et trompeuse, en langue française ou anglaise, de la nature ou de la qualité des marchandises ou services en liaison avec lesquels elle est employée, ou à l'égard desquels on projette de l'employer, ou des conditions de leur production, ou des personnes qui les produisent, ou du lieu d'origine de ces marchandises ou services; c) elle est constituée du nom, dans une langue, de l'une des marchandises ou de l'un des services à l'égard desquels elle est employée, ou à l'égard desquels on projette de l'employer; d) elle crée de la confusion avec une marque de commerce déposée; e) elle est une marque dont l'article 9 ou 10 interdit l'adoption; f) elle est une dénomination dont l'article 10.1 interdit l'adoption; g) elle est constituée, en tout ou en partie, d'une indication géographique protégée et elle doit être enregistrée en liaison avec un vin dont le lieu d'origine ne se trouve pas sur le territoire visé par l'indication; h) elle est constituée, en tout ou en partie, d'une indication géographique protégée et elle doit être enregistrée en liaison avec un spiritueux dont le lieu d'origine ne se trouve pas sur le territoire visé par l'indication. |
| 13. (1) A distinguishing guise is registrable only if (a) it has been so used in Canada by the applicant or his predecessor in title as to have become distinctive at the date of filing an application for its registration; and (b) the exclusive use by the applicant of the distinguishing guise in association with the wares or services with which it has been used is not likely unreasonably to limit the development of any art or industry. (2) No registration of a distinguishing guise interferes with the use of any utilitarian feature embodied in the distinguishing guise. |
13. (1) Un signe distinctif n'est enregistrable que si, à la fois_: a) le signe a été employé au Canada par le requérant ou son prédécesseur en titre de façon à être devenu distinctif à la date de la production d'une demande d'enregistrement le concernant; b) l'emploi exclusif, par le requérant, de ce signe distinctif en liaison avec les marchandises ou services avec lesquels il a été employé n'a pas vraisemblablement pour effet de restreindre de façon déraisonnable le développement d'un art ou d'une industrie. (2) Aucun enregistrement d'un signe distinctif ne gêne l'emploi de toute particularité utilitaire incorporée dans le signe distinctif. |
| 56. (1) An appeal lies to the Federal Court from any decision of the Registrar under this Act within two months from the date on which notice of the decision was dispatched by the Registrar or within such further time as the Court may allow, either before or after the expiration of the two months. . . . (5) On an appeal under subsection (1), evidence in addition to that adduced before the Registrar may be adduced and the Federal Court may exercise any discretion vested in the Registrar. |
| 56. (1) Appel de toute décision rendue par le registraire, sous le régime de la présente loi, peut être interjeté à la Cour fédérale dans les deux mois qui suivent la date où le registraire a expédié l'avis de la décision ou dans tel délai supplémentaire accordé par le tribunal, soit avant, soit après l'expiration des deux mois. . . . (5) Lors de l'appel, il peut être apporté une preuve en plus de celle qui a été fournie devant le registraire, et le tribunal peut exercer toute discrétion dont le registraire est investi. |
| ANALYSIS |
| [16] Issue 1 |
| What is the standard of review in an appeal pursuant to section 56 of the Trade-marks Act when there is new evidence introduced on appeal? |
| In Molson Breweries v. John Labatt Ltd. [2000] F.C.J. No. 159, Rothstein J.A. of the Federal Court of Appeal stated at paragraph 51: |
| I think the approach in Benson and Hedges v. St. Regis and in McDonald v. Silicorp. are consistent with the modern approach to standard of review. Even though there is an express appeal provision in the Trade-marks Act to the Federal Court, experience on the part of the Registrar has been recognized as requiring some deference having regard to the Registrar's expertise, in the absence of additional evidence adduced in the Trial Division, I am of the opinion that decisions of the Registrar, whether of fact, law or discretion within his area of expertise, are to be reviewed on a standard of reasonableness simpliciter. However, where additional evidence is adduced in the Trial Division that would have materially affected the Registrar's finding of fact or they exercise his discretion, the Trial Division Judge must come to his or her own conclusion as to the correctness of the Registrar's decision. |
| [17] In this case, the applicant introduced new evidence at the appeal, that being |
| actual samples of certain pills alleged by the respondent to be similar to the applicant's tablets. The respondent introduced evidence to show sales of some third party tablets. In light of the additional evidence tendered on appeal which was not before the Registrar, the standard of review by me is that I must come to my own conclusion as to the |
| correctness of the Registrar's decision. It should be noted that although an appeal, where new evidence is introduced on appeal, is often called a "trial de novo" this is truly not a "trial de novo" as the record from the Registrar is part of the appeal record. In a "trial de novo" nothing from the previous hearing is used as an entirely new record, without regard to the evidence of the previous hearing, is created at the appeal level. |
| [18] Issue 2 |
| Did the Registrar err in law in holding that to satisfy the paragraph 13(1)(a) test of |
| the Act, the applicant (appellant) is required to show that most adult Canadians recognize the applicant's distinguishing guise? |
| The Registrar held that "the applicant is required to show that most adult Canadians recognize the applicant's distinguishing guise as such". I am of the view that the Registrar did err in so holding. In my opinion, it would be a most difficult if not impossible task to show that most adult Canadians recognized the applicant's distinguishing guise. Neither the Molson case, supra, nor the Enterprise Rent-A-Car Co. v. Singer (1996) 66 C.P.R. (3d) 453 (F.C.T.D.) imposed such a strict requirement. |
| [19] Issue 3 |
In view of the new evidence filed by the applicant, did the Registrar err in finding the applicant's distinguishing guise to be inherently weak in distinctiveness based on evidence of third party tablets claimed to be similar in shape to the distinguishing guise at issue?
On this issue, I agree with the Registrar. It is commonly accepted that although the shape of a product can constitute a mark, the resulting mark is usually weak (see Novopharm Ltd. v. Bayer Inc. at paragraph 77).
| [20] Issue 4 |
Did the Registrar err in holding the evidential standard for registrability under paragraph 13(1)(a) to be met by the applicant in this case to be "even more severe" than other cases?
Again, in Molson Breweries v. John Labatt Ltd., supra, Rothstein J.A., when referring to subsection 12(2) of the Act stated at paragraph 53:
Although no case suggests otherwise, I think it is salutary to confirm that the standard of proof under subsection 12(2), as in other civil proceedings, is proof on a balance of probabilities. The term "heavy onus" would appear to be directed to the exceptional aspect of subsection 12(2). Subsection 12(2) is an exception to non-registrability of a trade-mark under paragraphs 12(1)(a) or (b). In this case, Molson concedes that the term "EXPORT" was clearly descriptive of a quality of beer. However, because of its long use in Canada by Molson -- since 1903 -- it is said to have become distinctive, that is, that its original descriptive connotation had been subordinated in the minds of the public in relation to Molson's "EXPORT" beer product, such that its secondary or distinctive meaning will dominate. [See Note 21 below] It is because subsection 12(2) is an exception to non-registrability of clearly descriptive terms, that an applicant must provide evidence on an issue that does not arise when a trade-mark has not been a clearly descriptive term. In this case, evidence must be adduced that long use has caused a descriptive word in association with beer to have become distinctive of the Molson's beer product. If such evidence is provided, it is to be assessed on a balance of probabilities. There is no onus beyond the onus of addressing and satisfying the requirement of subsection 12(2).
| [21] The applicant has submitted that the standard of proof for section 13(1)(a) of the |
Act should be the same as the standard stated by the Court in Molson Breweries v. John Labatt Ltd., supra. I agree and if the Registrar meant differently by the words "even more severe" he was in error.
| [22] Issue 5 |
Did the Registrar err in fact and law in finding the applicant had not met the paragraph 13(1)(a) onus of showing its distinguishing guise had become distinctive as of the date of application?
When an applicant wishes to have its distinguishing guise recognized as distinctive within the meaning of section 13(1)(a) of the Act, it must establish on the balance of probabilities that the guise has been adapted to distinguish or actually distinguishes its wares from those of others throughout Canada. There is no doubt as evidenced by the level of sales, that the applicant has used its guise throughout Canada.
| [23] The evidence establishes that the ZOVIRAX tablet has the word ZOVIRAX on |
one side of the tablet and a triangle on the other side of the tablet. Basically, the applicant's experts on cross-examination stated that if the triangle and the word ZOVIRAX was not on the tablet, it would not be ZOVIRAX. Mr. Goff was asked whether he would be able to identify the tablet as being ZOVIRAX without the word ZOVIRAX AND THE TRIANGLE. His reply was "I think so.".
| [24] Paragraph 2 of the application for registration states as follows: |
The trade mark is the distinguishing guise as shown in the attached drawing:
| [25] The affiants for the applicant included David Andrew Goff and Dr. Kenneth F. |
Walker. Mr. Goff was the Director of Corporate Affairs of Burroughs Wellcome Inc. and Dr. Walker is a specialist in gynaecology.
| [26] On cross-examination, Mr. Goff stated: |
Q. What did you mean by your answer, "It wouldn't be ZOVIRAX."?
A. Well, it -- I mean ZOVIRAX has the distinguishing marks on it. So that's--
Q. Without those marks would you be able to recognize it as ZOVIRAX?
A. I think so.
| [27] Also on cross-examination, Dr. Walker stated: |
Q. Okay. And you don't prescribe it because it's shield-shaped, do you?
A. No.
Q. You prescribe it because it works?
A. That's right.
Q. You don't prescribe it because it's blue?
A. No.
Q. Did you realize that there was a pink-shaped tablet as well?
A. I don't know. The colour . . . the colour . . . I must admit, the colour has not been a major point in my life, I suppose.
Q. Well, it really doesn't matter because you're not the consumer, it's the patient; right?
A. That's right.
Q. When you say that you're aware of the distinctive shield-shaped tablet, would you identify the tablet just by its appearance?
A. Oh, yes, I think I could identify it by the appearance, yes.
Q. Well, you told me earlier that it had ZOVIRAX written on the tablet. If it didn't have ZOVIRAX written on the tablet, would you identify it as ZOVIRAX?
A. Yes, because of the little triangular area in the back.
Q. If it had no triangle would you identify it as ZOVIRAX?
A. Possibly not.
Q. Right. Okay. So when you say here in paragraph two that you had never seen a comparable tablet, I'm going to suggest to you, Doctor, that you really have to take into account the markings and the other indicia on the table [sic] in order to identify it, don't you?
A. Yes.
Q. So you'd have to have ZOVIRAX and you'd have to have the triangle in order to identify it; correct?
A. That is correct.
Q. Now, apart from that, if you had -- let me show you these other tablets which are referred to by the Deponents in this case. Let me show you -- have we got two copies of this? I'd like to make this Exhibit 2 which is an excerpt from the 1993, 28th Edition of the CPS. Do you recognize this CPS --
A. I do.
Q. -- as being -- it's not exhaustive, but it's fairly comprehensive; correct?
A. That's correct.
| EXHIBIT NO. 2: Excerpt from 1993 CPS, 28th Edition. |
| MR. JOHNSTON: Q. If you turn to -- I believe the page numbers are at the top, either on the left or the right, Doctor. |
A. Yes?
Q. Page R-16, which is about three pages in, bottom of column eight, "C", so it's line eight, column "C", do you see that? There's a product called Anafranil there, do you see it at the bottom?
A. Page 16?
Q. R-16.
A. R-16, column eight? Yes, yes, I see it.
Q. Anafranil?
A. Yes.
Q. Would you characterize that as being shield shaped?
A. Yes.
Q. Now, when we turn over to R-18, you've got a tablet in column "B", line seven.
A. Right.
Q. Zocor?
A. Yes.
Q. Would you characterize that as being shield shaped?
A. Yes.
Q. And if we go to the next page, that would be R-20. If you go to column "D", line seven, there are two tablets there, one is Elavil Plus and one is Dexedrine, that's column "C" and "D"; do you see these two tablets?
A. I do.
Q. Would you characterize these as being shield shaped?
A. Yes.
Q. Would you characterize the next one, Flexeril, in column "E" as being shield shaped?
A. Reasonably so, yes.
Q. And the same would be true if you turn to page R-21, if you look at column "A", line five, Zocor?
A. Yes.
Q. Right?
A. Yes.
Q. That's shield shaped?
A. Yes.
Q. And then again we go over to page R-23, column "E", line two, there is Voltaren SR, do you see that?
A. I do.
Q. And then we've got in line seven in column "B" you've got Tofranil down at the bottom?
A. Mm-hmm.
Q. Right? That's shield shaped, isn't it?
A. It is.
Q. Yes. And then if we go over to page R-26 we've got in column "A" you've got Sectral by Rhone-Poulenc in line six, do you see that?
A. I do.
Q. That's shield shaped, isn't it?
A. It is.
Q. And so would you still maintain at this point after reviewing these that the shield shape is distinctive -- it's not distinctive, is it, Doctor?
A. I think one could say there are many tablets that look shield shaped.
Q. Right. So when you say you haven't seen a comparable tablet, I've just shown you tablets which are comparable, aren't they?
A. That's true.
| [28] The applicant did not present any evidence from patients and although this |
evidence may not always be necessary (see Novopharm Ltd. v. Bayer Inc. and the Registrar of Trade-marks, [2000] 2 F.C. 553 (F.C.T.D.) it is sometimes required.
| [29] I believe that when the applicant's own witnesses are uncertain about the |
distinctiveness of the shape of the tablet, it is incumbent on the applicant to lead evidence from patients to satisfy the onus to prove on the balance of probabilities that its ware has become known by its shape. In this case, shape, not colour or size, is the only factor in issue.
| [30] The applicant also argued that its advertising materials assisted it, but in my |
opinion, much of this material post-dates this application.
| [31] I am not satisfied, in light of the evidence of the applicant's witnesses, that the |
applicant has shown that its distinguishing guise (shield-shape) had become distinctive as of the date of the application.
| [32] Although the Registrar was in error with respect to the onus of proof to be applied |
under paragraph 13(1)(a) of the Act, my conclusion as to the correctness of his final decision under paragraph 13(1)(a) is that he was in fact correct. Like the Registrar, the applicant has not satisfied me that its distinguishing guise had become distinctive, within the meaning of subsection 13(1) at the date of filing the application for its registration.
| [33] The applicant had the onus of proving that its distinguishing guise (shape of the |
tablet) is recognized as being distinctive of its wares. Dr. Walker stated that there were other shield-shaped tablets in the market. As well, Mr. Goff was asked whether he would recognize ZOVIRAX without the other distinguishing marks that are on the tablet (triangle and the word ZOVIRAX). His answer was "I think so.". This is not very compelling evidence and is insufficient to establish on a balance of probabilities that the shield-shape distinguished the applicant's tablets from other shield-shaped tablets on the market.
| [34] I am therefore of the opinion that the shield-shape had not become, through use, |
distinctive of the product.
| [35] Issue 6 |
Did the Registrar fail to give proper weight to the extent of sales and advertising by the applicant of its tablets bearing its distinguishing guise and the evidence of the physicians and pharmacists?
From my decision under Issue 5, it is reasonable to conclude that I do not believe that the Registrar failed to give proper weight to the extent of sales and advertising of its tablets by the applicant and the evidence of physicians and pharmacists. I have dealt with some of the evidence earlier in this decision and I do not believe that the Registrar failed to give proper weight to any of the evidence.
| [36] Issue 7 |
Did the Registrar err in rejecting the application on the basis of the eighth ground of opposition and in so doing, relying on findings relating to distinctiveness under paragraph 13(1)(a) and in also finding that as of the date of opposition the applicant had " . . . failed to satisfy the heavy onus of showing that its guise is distinctive throughout Canada"?
I agree with counsel for the applicant that, based on the findings of the Federal Court of Appeal in Molson Breweries v. John Labatt Ltd., supra, the relevant date for determining distinctiveness under paragraph 13(1)(a) is the date of the filing of the application for registration. It is to be noted that the Court of Appeal in the Molson case, supra, was dealing with paragraph 12(1)(a) of the Act, but I am of the opinion that the same reasoning applies to paragraph 13(1)(a). In light of this finding, I do not find it necessary to deal further with this issue.
| [37] The appeal is therefore dismissed with costs to the respondent. |
ORDER
| [38] IT IS ORDERED that the appeal is dismissed with costs to the respondent. |
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 10, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-613-99
STYLE OF CAUSE: GLAXO WELLCOME INC. v. NOVOPHARM LTD. ET AL
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 12TH, 2000
REASONS FOR ORDER AND ORDER OF O'KEEFE, J.
DATED: OCTOBER 10TH, 2000
APPEARANCES:
MR. MICHAEL E. CHARLES FOR APPLICANT
| MS. CAROL HITCHMAN AND FOR NOVOPHARM LTD. |
MS. PAULA BREMNER
SOLICITORS OF RECORD:
BERESKIN & PARR FOR APPLICANT
TORONTO, ONTARIO
HITCHMAN & SPRIGINGS FOR NOVOPHARM LTD.
TORONTO, ONTARIO