IN THE MATTER OF AN OPPOSITION filed by International Cheese Council of Canada to Application No. 795511 for the Trade-mark HALLOUMI filed by the Ministry of Commerce, Industry and Tourism of the Republic of Cyprus________________________________________
I The Pleadings
On October 23, 1995 the Ministry of Commerce and Industry of the Republic of Cyprus filed an application to register the trade-mark HALLOUMI (the “Mark”), application number 795511, as a certification mark based on use in Canada since at least as early as October 19, 1995 in association with cheese (the “Wares”). The applicant subsequently changed its name to The Ministry of Commerce, Industry and Tourism of the Republic of Cyprus (the “Applicant”).
I shall reproduce hereinafter the defined standard appearing in the application:
The use of the certification mark is intended to indicate that the specific wares listed above in association with which it is used are of the following defined standard: the defined standard prescribes that the cheese is produced only in Cyprus using the historic method unique to that country, namely: traditionally, it has been produced from sheep's and/or goat's milk. In case of mixtures, cow's milk is also allowed. Raw materials which are used for its production include rennin, mint leaves and salt. See file for information about quality characteristics, chemical characteristics and maturation.
The Applicant overcame office actions and the application was advertised on November 28, 2001 in the Trade-marks Journal for opposition purposes.
International Cheese Council of Canada filed on April 4, 2002 a statement of opposition that was forwarded on April 30, 2002 by the Registrar to the Applicant.
The Applicant denied all grounds of opposition in a counter statement filed on May 28, 2002.
The Opponents filed the affidavits of Claude Imbeau Chagnon, Mélissa Dorsaint, Maurice Yammine, Lynn Susan Larson, Jean-Pierre Salvas, three (3) affidavits of Marie-Pierre Simard and two (2) affidavits of Gisèle Legault. A cross-examination order issued against all of the Opponent’s deponents and they were cross-examined save for Maurice Yammine who was not made available for cross-examination. His affidavit was replaced by the affidavit of Gaby Boustani who was cross-examined. I should point out that I did not read the content of Mr. Yammine’s affidavit despite being in the file, as it is considered not to be part of the record. The Applicant filed the affidavits of Yiannos Pittas, Eric Moscahlaidis, Mike Georgiopoulos, Kostas Andreou, Steve Kiliaris, George Tsioros, Spiro Aravantinos, Kavita Ramamoorthy and two (2) affidavits of Catherine Vadeboncoeur. It should be noted that the affidavits of Mr. Tsioros and Mr. Aravantinos were returned to the Applicant for failure to submit themselves to a cross-examination. All the other deponents were cross-examined except for Kavita Ramamoorthy. All transcripts of these cross-examinations were filed into the record.
Both parties filed written argument and were represented at an oral hearing.
1 Pursuant to Section 38(2)(a) of the [Trade-marks] Act, [R.S.C. 1985, c. T-13 (the “Act”)], the Application does not comply with the provisions of Section 30 of the Act, and specifically:
(a) The Application does not comply with Section 30(a), because no licensee of the Applicant has used HALLOUMI as a certification mark in Canada since the date set out in the Application, namely October 19, 1995, or, if HALLOUMI was used as a certification mark, such use has ceased;
(b) The Application does not comply with Section 30(f) of the Act, because the Application does not set out particulars of the defined standard that the use of the certification mark HALLOUMI is intended to indicate;
(c) The Application does not comply with Section 30(f) of the Act, because the Applicant cannot state that it is not engaged in the manufacture or sale of the wares in association with which the certification mark is used in Canada;
2. Pursuant to Sections 38(2)(b) and 12(1)(b) of the Act, HALLOUMI is not a registrable trade mark, because it is clearly descriptive of the character of the wares associated with the mark.
3. Pursuant to Sections 38(2)(b) and 12(1)(c) of the Act, HALLOUMI is not a registrable trade mark, because it is the name, in a language, of the goods associated with the trade mark.
4. Pursuant to Sections 38(2)(b), 12(1)(e) and 10 of the Act, the adoption of HALLOUMI as a trade mark is prohibited, because HALLOUMI has by ordinary and bona fide commercial usage become recognized in Canada as designating a kind or quality of cheese.
5. Pursuant to Sections 2 and 38(2)(d) of the Act, HALLOUMI is incapable of functioning as a certification mark in Canada, namely a mark used for the purpose of distinguishing or so as to distinguish wares of a defined standard with respect to character, quality, working conditions, class of producers or area of production, because HALLOUMI has been used in Canada prior to the Applicant's date of first use, namely October 19, 1995, and subsequently, by persons not licensed by the Applicant, to describe cheeses which do not meet the standards set out in the Application.
III Motion to Amend the Statement of Opposition
There was a first request to amend the statement of opposition filed on July 25, 2003 and it was refused on December 2, 2003 by the Registrar. A further request was filed on March 18, 2008 to change the Opponent’s agent address and to add at the end of the last ground of opposition the following:
More particularly, it was admitted by Yannakis Pittas in his June 21, 2004 affidavit filed as part of the Applicant’s evidence, that the Applicant does not itself license others to use the HALLOUMI certification mark in accordance with the defined standard but that such licenses of use are granted by third parties, namely the Minister of Health and/or the Department of Veterinary Services of the Minister of agriculture and natural resources.”
The matter was referred for adjudication at the hearing that took place on April 2, 2008. At the hearing the Opponent’s agent made a verbal request to further amend its statement of opposition so that reference to s. 30(a) of the Act in ground 1a) hereinabove should read s. 30 (b). At the hearing I disposed of these motions by allowing the amendment on the change of address of the Opponent’s agent and allowed the verbal amendment to substitute s. 30 (a) for s. 30(b). However I refused to grant leave to amend the last ground of opposition. The motion was filed at the last possible moment. No valid reasons were provided to explain why the Opponent could not have filed such request upon receipt of Mr. Pittas’ affidavit, namely in June 2004 or shortly after his cross-examination held on February 10, 2005 or even at the time when the written arguments were drafted (July 2007).
IV Disposal of the grounds of opposition not argued in the Opponent’s written argument and during the oral hearing
There were no written or oral representations with respect to the grounds of opposition described in paragraphs 1 b), and c), 2 and 3. Despite the abundance of evidence filed by each party, there is no evidence to support any of these grounds of opposition. As in any opposition proceeding, the Opponent has an initial evidential onus to establish the facts relied upon by it in support of each ground of opposition pleaded. Once this initial onus is met, the Applicant then has to prove, on a balance of probabilities, that the particular grounds of opposition should not prevent the registration of the Mark. [See Joseph E. Seagram & Sons Ltd. et al v. Seagram Real Estate Ltd., 3 C.P.R. (3d) 325, at pp. 329-330; John Labatt Ltd. v. Molson Companies Ltd., 30 C.P.R. (3d) 293 and Wrangler Apparel Corp. v. The Timberland Company, [2005] F.C. 722] I may add that in any event the evidence shows [rf.: exhibit YP-5e to Mr. Pittas’ affidavit] that the term “halloumi” is derived from the Greek word “halmi” which means “salty”. Therefore s. 12(1)(b) or (c) are not applicable to our case. Grounds of opposition 1b) and c), 2 and 3 are dismissed for failure by the Opponent to meet its initial onus.
The Opponent limited its representations in its written arguments to grounds 4 and 5 described above. However, at the oral hearing the agent for the Opponent also made verbal representations on ground 1a).
As a result I shall address the issues of registrability, distinctiveness and conformity (only with respect to grounds 1a)).
V Registrability of the Mark
The Opponent argues that the Mark is not registrable because it has become recognized in Canada as a type of cheese through ordinary and bona fide commercial usage. Therefore the Applicant would be precluded from adopting the Mark as a certification mark in association with the Wares, the whole contrary to s. 10 of the Act. I have to determine if the Opponent has adduced sufficient evidence to conclude that the Mark has become recognized in Canada as designating the kind, quality, value, or place of origin of the Wares.
The relevant date is the date of the Registrar’s decision. [See B.C. Hydro and Power Authority v. Consumers Gas Co. (2001), 9 C.P.R. (4th) 280 (T.M.O.B.) and Park Avenue Furniture Corporation v. Wickes/Simmons Bedding Ltd. (1991), 37 C.P.R. (3d) 413 at 424 (F.C.A)]
Without going into an elaborate analysis of the evidence filed by both parties there seems to be a consensus that cheese sold in Canada and manufactured in Cyprus bearing the Mark has the particular characteristic that it does not melt when exposed to heat during cooking. Any cheese manufactured in Canada and bearing a visual or phonetically similar trade-mark such as HALLOUM, HALLOOM, HALOUMI or HALOMI does not have such characteristic. (Throughout this decision I shall use the spelling as it appears on the document referred thereto.)
The purpose of a certification mark is to alert the Canadian consumers that the product bearing such mark possesses a certain standard that distinguishes it from other similar types of products. In this particular case the Mark would be used to distinguish that type of cheese from any other type of cheese. However one would not be able to obtain the monopoly over a term or word under pretext that it is a certification mark if such mark has been used extensively in Canada by others prior to the relevant date such that it has become recognized in Canada as designating the kind, quality, value, or place of origin of the Wares.
The Applicant argued that that the cheese bearing the Mark would indicate that it originates from Cyprus. However the application is for the registration of a certification mark and the Mark is not a geographical indication. Such type of mark has its own set of rules under s. 11.11 and following of the Act.
I shall now review the relevant evidence. Mélissa Dorsaint, Claudie Imbeau Chagnon and Marie-Pierre Simard were all working in Montreal either as student, articling student or as a lawyer for the Opponent’s prior agent firm. Lynn Susan Larson was working in Ottawa as an articling student with the same agent firm. They visited five (5) retail stores in Montreal, one (1) in Sorel-Tracy, Quebec, one (1) in St-Robert, Quebec and three (3) retail stores in Ottawa wherein they were able to purchase cheese sold in various packaging, which will be described hereinafter, subsequent to a request to buy “halloumi” cheese. For each purchase they made, they produced the packaging and/or pictures of it and proof of purchase. The various packaging bear one or more of the following inscriptions: LE BÉDOUIN, HALLOOM, CLIC HALLOOM, DORÉ-MI or HALOUMI. The various packaging indicate that the cheese purchased originated from the following sources:
Les Produits Phoenicia Inc. of Montreal (HALLOOM)
La Fromagerie Polyethnique Inc of St-Robert, Quebec (LE BÉDOUIN HALOUMI)
Clic Import Export (CLIC HALLOOM)
Les Aliments Karine Inc. of Montreal (HALLOOM)
Saputo Cheese Division Fromage (Canada) (DORÉ-MI)
Fromagerie Marie Kadé of Boisbriand, Quebec (HALLOOM)
Representatives of two of those suppliers also filed affidavits, namely Gaby Boustani of Produits Phoenicia Inc. (“Produits Phoenicia”) and Gisèle Legault and Jean-Pierre Salvas of La Fromagerie Polyethnique Inc.
Mr. Boustani has been the Operation Manager of Produits Phoenicia since its incorporation in 1994. It carries on business as a manufacturer, importer and distributor of food products. He alleges that Produits Phoenicia introduced in July 1995 into the Canadian market cheese identified as HALLOOM and sold under the trade-mark PHOENICIA. He filed as an exhibit the sales records of Produits Phoenicia between November 1, 2001 and November 30, 2002 totalling over $500000 for more than 60,000 kg. He states, and this evidence is not contradicted, that the sales of cheese identified as HALLOOM between 1995 and May 2003 totalled approximately $1,5 million for over 190,000 kg. He lists some of Produits Phoenicia’s clients located in Toronto, Halifax, Calgary, Ontario and Quebec.
Mr. Salvas is the General Manager of La Fromagerie Polyethnique Inc. and has been acting as the Secretary Treasurer since its inception in 1993. It started to sale, amongst others, cheese products in 1995 including three different cheeses: “haloumi”, “akawi” and “labneh”. Most of its production is for Produits Phoenicia but it also has its own brand, namely LE BÉDOUIN. He states that La Fromagerie Polyethnique Inc.’s sales of cheese identified as HALOUMI during its fiscal year ending August 31, 2002 were in excess of $400000 for approximately 50,000 kg. He filed sample invoices for the years 1995 to 2002 inclusive. I consider the allegations contained in paragraph 17 of his affidavit as inadmissible hearsay evidence.
Ms. Legault has been working since October 2000 as a bookkeeper with La Fromagerie Polyethnique Inc. She filed sample invoices to illustrate sales to an exclusive distributor in the Sorel-Tracy region, in Quebec. Those sales were for cheese sold in a packaging bearing a label on which appears the trade-mark LE BÉDOUIN as well as the term HALOUMI.
During his cross-examination, Mr. Georgiopoulos, the manager of Minerva’s Mediterranean Deli located in Vancouver, admitted that HALLOUMI is a kind of cheese. (See page 11 of his cross-examination). He also stated that he does sell HALLOUMI and HALLOOM cheeses. On page 10 of his cross-examination he mentioned:
Q.: But there is a cheese that you’re aware of called Halloom?
A.: And we use that cheese if we can’t find Halloumi.
Mr. Costas Andreou is the manager of Mediterranean food specialties stores operated under the name Mourelatos with various locations in the Greater Montreal area. He also acknowledged during his cross-examination that HALLOUMI is the name of a type of cheese. Both HALLOUMI and HALLOOM cheeses are sold in those stores.
The Applicant’s agent tried to dissect each affidavit filed by the Opponent to reduce them to their simplest expression. They argued that the sales records of Produits Phoenicia are not that clear as they comprise sales under the heading “Halloum Vrac” and “Halloum Vacuum”. It then speculated on what those two categories meant. There is no clear evidence on those speculations and Mr. Bustani was cross-examined. If there were any doubts in the Applicant’s mind on the meaning of those headings, it was the perfect opportunity to clarify the situation. The sales figures are not contested. There might be some quantity sold in bulk but it remains that it is identified under the term HALLOUM. It is therefore known at least in the industry in Canada as HALLOUM type of cheese.
It also argued that the deponents were not qualified as experts in the field of cheese. Therefore any opinion given on what means and represents the Mark should be disregarded. Nonetheless, I still have to consider the sales records filed, the packaging and the admissions made by the Applicant’s deponents.
I make a distinction between “use” (not in the legal sense of the Act) of the term HALLOUM to identify a type of cheese and use as a trade-mark. It would appear from the evidence in the record that we have examples of both. As it is used by third parties in Canada to identify a type of cheese or as a trade-mark, it can no longer be used exclusively by one party as a certification mark to identify this kind of cheese. This prohibition is clearly enunciated in s. 10 of the Act.
An argument could be made that the evidence establishes “use” of the terms “Halloom”, “Haloumi” or “Halloum” to identify a type of Mediterranean cheese as opposed to the Mark. However s. 10 of the Act reads:
Where any mark has by ordinary and bona fide commercial usage become recognized in Canada as designating the kind, quality, quantity, destination, value, place of origin or date of production of any wares or services, no person shall adopt it as a trade-mark in association with such wares or services or others of the same general class or use it in a way likely to mislead, nor shall any person so adopt or so use any mark so nearly resembling that mark as to be likely to be mistaken therefore.
There is a close resemblance between HALLOUMI on one hand and HALOUMI, HALLOUM and HALLOOM on the other hand. Moreover they all appear on cheese packaging and as mentioned above in some instances they are substituted one for the other. Under these circumstances I fail to see how the Applicant could get the exclusive use of the Mark in Canada where the evidence shows that there has been bona fide commercial usage of the Mark or similar terms such that it is recognized in Canada as designating a kind of cheese. Therefore I maintain the fourth ground of opposition.
VI Conformity of the application to the provisions of s. 30
The Opponent argues that Mr. Pittas admitted, in his affidavit, that the Applicant is not the authority that issues the licenses to those manufacturers of the Wares bearing the Mark and therefore any “use” of the Mark by those licensees cannot benefit to the Applicant. Consequently there cannot be use of the Mark as of the alleged date of first use.
The Opponent may rely on the evidence filed by the Applicant to argue conformity issues as most of the time an opponent is facing a situation where the information needed to meet its initial onus is in the hands of the applicant. Nonetheless when doing so, the applicant’s evidence must raise serious doubts as to the accuracy of the statements contained in the application.
The Applicant takes the position that the only requirements for the registration of a certification mark are those listed in s. 30(f). Since the application contains a description of the defined standard that the use of the Mark is intended to indicate, the requirements under s. 30(f) have been met. Thus any ground of opposition pleaded under “conformity” should be dismissed.
I disagree with the simplistic approach adopted by the Applicant. Any type of application, including the registration of a certification mark, would have to comply with the requirements of s. 30(h) and (i) for example. I have to review the Applicant’s evidence that might be relevant to this ground of opposition in order to determine if it raises serious doubts such that the accuracy of the statements contained in the application could be considered inaccurate. If that is the case, then I have to determine if the Applicant has satisfied its burden to prove that the application meets all the applicable requirements listed under s. 30. However this analysis must be made while not losing sight of the particular wording used by the Opponent in its statement of opposition.
At the outset I should mention that there is no affidavit signed by an authorized representative of the Applicant. However it is not mandatory.
Mr. Pittas is the co-owner of Pittas Dairy Industries Limited located in Cyprus. He filed samples of packaging of cheese bearing the trade-mark PITTAS exported to the United States to distributors such as Krinos Foods Inc. and Fantis Foods Inc. The packaging also bears the Mark. [Reference to exhibit YP-4 to his affidavit] He explains that the cheese manufactured by his company and sold in Canada is imported from the United States from those American distributors. To corroborate such allegations we have in the record the affidavit of Eric Moscalhlaidis, the owner of Krinos Foods Inc. who confirms that his company imports cheese from Cyprus bearing the Mark and redistributes such cheese into Canada. Finally to end the circle we have various affidavits from Canadian retailers across Canada confirming that they sell cheese manufactured by Pittas Dairy Industries Limited and bearing the Mark. Kavita Ramamoorthy, a lawyer with the Applicant’s agent’s firm, purchased in Canada cheese in the same packaging as filed by Mr. Pittas. [See exhibit KR-2 to his affidavit]
There remains to determine if such use of the Mark is deemed to be the Applicant’s use. I shall reproduce pertinent paragraphs of Mr. Pittas’ affidavit:
9. To preserve and protect the unique, traditional characteristics of HALLOUMI cheese, its manufacture is subject to strict statutory standards, as defined by the Cyprus Standards & Quality Control (fixed Standards - 1 dh Series) Regulation of 1985 (hereinafter referred to as "the Regulation"). There is now being shown to me and marked as Exhibit YP-2 a copy of an English translation of the Regulation.
12. Different Cypriot government ministries ensure that the hygienic requirements, labeling standards and manufacturing standards of HALLOUMI cheese are properly complied with.
13. The Ministry of Health, together with the Department of Veterinary Services of the Ministry of Agriculture and Natural Resources, is responsible for granting licenses to the dairy manufacturers to manufacture their various dairy products, including HALLOUMI cheese.
14. Inspectors from the Department of Veterinary Services of the Ministry of Agriculture and Natural Resources are responsible for visiting the premises of the manufacturers to ensure that the health and hygienic requirements regarding the manufacture of HALLOUMI cheese are being complied with.
15. Once the HALLOUMI cheese reaches the market (i.e. the points of sale), inspectors from the Ministry of Health are responsible for ensuring that it is safe for consumption. These inspectors also ensure that the HALLOUMI cheese is manufactured according to the prescribed government standards. Municipal inspectors assist the inspectors from the Ministry of Health with this inspection.
16. Inspectors from the Ministry of Commerce, Industry and Tourism of the Republic of Cyprus are responsible for visiting the points of sale and ensuring that the labeling requirements for the HALLOUMI cheese are being complied with.
17. If a dairy manufacture [sic] fails to respect the standards of manufacture of HALLOUMI cheese, it might have its license revoked and its premises could be shut down.
Exhibit YP-2 to Mr. Pittas’ affidavit is a document setting out in detail the Standards applied in Cyprus for Halloumi cheese. The document contains the following:
“They are implemented on a compulsory basis according to Section 9 of the Cyprus Standards and Control of Quality Law, 1975.”
(…)
« If any additional information or any more specific answers regarding the two Cyprus Standards are required or more information on the technology of manufacturing halloumi, its chemical characteristics, etc., please contact us at the Ministry of Commerce and Industry.”
(…)
The following Ministries/Departments/Organizations/ Associations collaborated in the preparation of the standards:
Ministry of Agriculture, Natural Resources and Environment
Ministry of Health
Ministry of Commerce, Industry and Tourism
Veterinary Department of the Ministry of Agriculture, Natural Resources and Environment (…)
I shall also reproduce the following pertinent extracts of his cross-examination:
Q. [69] Do you have a license from the Ministry of Commerce, Industry and Tourism of the Republic of Cyprus to manufacture a cheese?
A. We have a license ...
Q. [70] You have a license?
A .... from the Government of Cyprus.
Q. [71] It I S issued by the Government?
A. Yes.
Q. [72] Which authority?
A. It's the Veterinary Services.
Q. [73] Are there other licenses issued by the other government agencies or ministries to manufacture cheese or to export cheese?
A. Specifically for cheese or generally for the company?
Q. [74] Specifically for cheese.
A. No, we have, we have to be registered as a cheese producer -- sorry, food producer, and comply with the health regulations.
Q. [75] Okay. So you need a license as a cheese producer. This license, is it correct to say that it's issued by Veterinary Services?
A. Yes.
Q. [76] Yes. As a food producer, is it also issued by the Veterinary Services?
A. As a food producer?
Yes.
A. Yes.
Q. [78] Okay. What about compliance? Are there any license issued which confirms that you are in compliance with food legislation regulation or cheese regulation and legislation?
A. Repeat it, please?
A. Okay. Is there any license issued by the Government of Cyprus for, confirming that you're in compliance with food regulations?
A. There is a license.
Q. [79] There is a license for compliance?
A. Yes.
Q. [80] With food regulation?
A. Yes.
Q. [81] Cheese regulation?
A. Yes.
Q. [82] Okay. Is this license also issued by Veterinary Services?
A. Yes.
Q. [83] So there are three licenses issued?
A. No, there is one registration.
Q. [84] It's only one registration that deals with these three elements?
A. Yes.
Q. [85] Being a food producer, a cheese producer and being in compliance?
A. Yes.
In fact a copy of the license issued to Pittas Dairy Industries Limited was filed as a reply to an undertaking. The Ministry of Agriculture, Natural Resources and the Environment, Veterinary Services issued it. Moreover in its written argument the Applicant admitted in paragraph 72 that it is the Ministry of Health together with the Department of Veterinary Services and not the Ministry of Commerce, Industry and Tourism that is responsible for the issuance of licenses for the use of the Mark in association with the Wares.
Contrary to what has been argued by the Opponent, the Applicant does not have an initial onus to prove that the different users of the Mark are authorized licensees of the Applicant. Therefore the absence of such evidence is not fatal to the Applicant. However it appears clearly from the evidence summarized above that the authority that issues the license to use the Mark in association with the Wares is not the Applicant but the Ministry of Health together with the Department of Veterinary Services of the Ministry of Agriculture, Natural Resources and the Environment. It would appear that various Ministries of the Republic of Cyprus are involved in the supervision of the manufacture and exportation of cheese bearing the Mark and have different responsibilities depending on the stage reached in the manufacturing or exportation of the Wares. It might be that ultimately, under the parliamentary structure of the Republic of Cyprus, the Applicant delegated its authority to the Ministries of Health and of Agriculture, Natural Resources and the Environment but we have no evidence to support such hypothesis.
Under these circumstances I have no other alternative but to conclude that the Opponent has met its initial onus and that the Applicant has not provided any evidence to discharge its own burden. Consequently any “use” of the Mark in Canada cannot be deemed use by the Applicant as per s. 23(2) of the Act. The evidence shows that the users of the Mark, including Pittas Dairy Industries Limited, did not obtain their rights to use the Mark from the Applicant itself but from another governmental body. The Applicant is not the Republic of Cyprus but a specific ministry. There is no evidence that all ministries of the Republic of Cyprus can be considered as one and the same legal entity. Consequently, ground of opposition 1a) described above is maintained.
VII Distinctiveness
It is generally accepted that the issue of distinctiveness of the applied mark is to be decided as of the filing date of the statement of opposition (March 8, 2002). [See Metro-Goldwyn-Meyer Inc v. Stargate Connections Inc (2004), 34 C.P.R. (4th) 317 (F.C.T.D.)]
Most of the evidence filed by the Opponent on use of the term “HALLOUM” or “HALLOOM” discussed under the heading “registrability” is posterior to the relevant date. Therefore I cannot conclude that the Mark lack in distinctiveness on the sole basis of such evidence.
However, the Opponent takes the position that persons not licensed by the Applicant have previously used the Mark in Canada and as such the Mark is not distinctive.
The evidence filed by the Applicant itself shows that the Mark has been used in Canada by entities not licensed by the Applicant as discussed under the “conformity” heading. Therefore, at the relevant date, the Mark was not distinctive because of such use. Accordingly, the fifth ground of opposition raised by the Opponent is also maintained.
VIII Conclusion
Having been delegated authority by the Registrar of Trade-marks by virtue of s. 63(3) of the Act and pursuant to the provisions of s. 38(8) of the Act, I refuse the Applicant’s application to register the Mark in association with the Wares.
DATED IN BOUCHERVILLE, QUEBEC, THIS 29th DAY OF APRIL 2008.
Jean Carrière,
Trade-marks Opposition Board