TRADE MARKS |
Practice |
Brain Tumor Foundation of Canada v. Starlight Foundation
A-496-99
2001 FCA 36, Richard C.J.
22/2/01
3 pp.
Appeal from Trial Division Judge's decision ((1999), 4 C.P.R. (4th) 192) (upholding Prothonotary's decision) (1999), 2 C.P.R. (4th) 247) to strike out appellant's affidavit in proceeding under Trade-marks Act, s. 56(5)--S. 56(5) stating on appeal under s. 56(1), evidence in addition to that adduced before Registrar may be adduced and Federal Court may exercise any discretion vested in Registrar--Prothonotary's decision based on ground evidence cannot be filed under s. 56(5) by party to proceeding where no evidence filed by that party in original proceeding before Registrar--Austin Nichols & Co., Inc. v. Cinnabon Inc., [1998] 4 F.C. 513 (C.A.) holding "in addition to" not implying had to be prior evidence to which further evidence could be added--In giving Court same discretion as that vested in Registrar, Parliament recognizing Court sitting in appeal expected to be able to decide issues as if tried for first time before Court--Suggesting registered owner having in appeal same opportunity to file evidence had before Registrar--Appeal process in s. 56 of general application, applies to all appeals from any proceedings before Registrar, including this proceeding--Appeal allowed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 56(5).