SECTION 45 PROCEEDINGS
TRADE-MARK: NATURAL REGENA
REGISTRATION NO. 287,081
On January 10, 1990, at the request of Robic, Robic & Associates
on behalf of Framesi S.R.L., the Registrar forwarded a Section 45
notice to Minerva Beauty Supplies Ltd.- Minerva Produits de Beaute
Ltee, the registered owner of the above-referenced trade-mark
registration.
The trade-mark NATURAL REGENA was registered on January 20, 1984
for use in association with the wares "hair cream".
In response to the Registrar's notice, the registrant furnished the
affidavit of Angelio Baggio. The requesting party filed a written
submission on May 10, 1990.
On August 7, 1990, the registrant requested and was granted a
retroactive extension of time pursuant to section 47 ( 2 ) of the
Trade-marks Act to file a supplementary affidavit of Angelo Baggio.
The requesting party filed a further written submission; the
registrant also filed a written submission; there was no oral
hearing.
The registrant made a further request on April 10, 1991 for filing
additional evidence; such request was refused by official letter
of May 15, 1991 for the reasons stated therein.
In his second affidavit, Mr. Baggio has stated that the wares are
manufactured in Italy and imported by the registrant in 100kg
barrels and then filled in Montreal in 2 types of white plastic
pots of 120gr. and 500 gr.; he has indicated that the pots bear a
green label with the trade-mark "Natural Regina" and has submitted
a specimen of the label; he has
furnished sales figures for the
years 1982, 1983 and 1988 and 1989; and he has submitted invoices
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which, for the most part, show sales of wares including the
registered wares to hair salons.
The requesting party's main argument is that the registrant is not
using the trade-mark as registered i.e. NATURAL REGENA.
Although in paragraph 4 of his affidavit, Mr. Baggio has made
reference to "Natural Regina" rather than "Natural Regena", the
label submitted with the affidavit shows the trade-mark as being
NATURAL REGENA. Furthermore, in its written submissions, the
registrant has stated that the misspelling in the affidavit was due
to a typographical error.
The requesting party has pointed out that if one looks closely at
the invoices, it is the word REGINA that appeared as it can be seen
that the "I" was changed for an "E". In response thereof, the
registrant has stated in its written submission that such
misspelling was due to a clerical error. It further submitted that
spelling errors in the computers continue to be printed until
corrected and that presently they have been corrected.
Although I find it is very peculiar that year after year the same
error would have been repeated, the invoices as corrected and as
submitted show the word "Regena", although it is unclear when the
corrections to the invoices were made. Nevertheless, as mentioned
earlier, the label submitted with the affidavit shows the trade-
mark as registered.
I would like to add that section 45 proceedings are intended to be
of a summary nature and that technical submissions of the nature
of those put forward by the requesting party are not ones to be
addressed in such proceedings.
Consequently, although the evidence
furnished contains many
shortcomings, when considered in its totality it is sufficient to
shown use of the trade-mark NATURAL REGENA at the material date
in association with the registered wares.
In view of the evidence filed, I have concluded that at the
material date the registrant had been using the trade-mark in
association
with
the
registered wares.
Accordingly,
its
registration ought to be maintained.
Registration No. 287,081 will be maintained in compliance with the
provisions of section 45(5) of the Trade-marks Act.
DATED AT HULL, QUEBEC, THIS 30th -DAY OF November
(Mrs.) Denise Savard
Senior Hearing Officer
section 45
1992.
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