TRADE MARKS |
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Atlantic Engraving Ltd. v. Rosenstein, Lapointe
A-682-01
2002 FCA 503, Nadon J.A.
16/12/02
5 pp.
Appeal of Trial Division order to adjourn hearing of appeal from Registrar of Trade-marks' decision ordering respondent's trade-mark AE & Design registered as no. 228,684 be expunged from register--Registrar concluded respondent had failed to demonstrate association of trade-mark with wares covered by registration at time of transfer of wares to clients as affidavit filed in support poorly drafted, inept--However, unfair to deprive respondent of trade-mark because of ineptitude--Pursuant to Federal Court Rules, 1998, r. 306, applicant has 30 days from filing of notice of application to file supporting affidavits and exhibits--By exception, r. 312 allowing party to file additional affidavits--Under r. 312, Court may allow filing of additional affidavits if following requirements met: (i) evidence adduced will serve interest of justice; (ii) evidence will assist Court; (iii) evidence will not cause substantial or serious prejudice to other side--Further, applicant must show evidence sought to be adduced not available prior to cross-examination on opponent's affidavits --No basis to adjourn matter in way T.D. Judge did--First, no motion before Judge for leave under r. 312--Second, respondent could not show evidence to be adduced had not been available in past--Third, lack of expertise of counsel in field of trade-marks law not proper basis for decision-- Accordingly, appeal allowed and appeal from decision of Registrar of Trade-marks dismissed--Trade-marks Act, R.S.C., 1985, c. T-13--Federal Court Rules, 1998, SOR/98-106, rr. 306, 312.