Bell Canada v. Pizza Pizza Ltd.
T-3183-90
Pinard J.
28/4/93
6 pp.
Motion to strike reamended statement of claim -- Defendant obtaining registration as trade marks in association with restaurant services and/or food products for four of 51 phone numbers ending in "1111" assigned to it by plaintiff -- Reamended statement of claim seeking (1) expungement of registrations; (2) declaration telephone numbers assigned by plaintiff owned by plaintiff, not constituting registrable trade marks, and defendants not entitled to registration; or (3) if registrable, and defendant entitled to registration, declaration such registrations not affecting interpretation and application of terms of service, and bona fide use by other customers not constituting infringement -- Trade-marks Act, s. 57 giving Federal Court exclusive original jurisdiction to order any entry in register struck out on ground at time of application entry not accurately expressing existing rights of apparent registered owner -- S. 58 providing application under s. 57 to be made by statement of claim in action claiming additional relief under Act -- Motion allowed -- Declaration plaintiff owned telephone numbers inadmissible in so far as concerns registered trade marks as serving no useful purpose and not resolving dispute between parties -- Declaration trade marks not registrable, so far as relates to telephone numbers assigned to defendant not yet registered as trade marks, attempt to circumvent entrenched statutory provisions of Trade-marks Act, which provides complete code of procedure (ss. 38, 55 to 61), and not to be by-passed -- Since purely speculative and hypothetical, second relief struck -- Third relief denied as no allegations of existing dispute to be resolved -- Issues raised purely speculative and hypothetical -- Such determination could affect rights of third parties not before Court -- First relief cannot stand alone -- By seeking order expunging trade mark registrations, plaintiff attempting to apply under Trade-marks Act, s. 57, which, according to s. 58, must be made by statement of claim in action claiming additional relief under Act -- As second and third relief struck, no additional relief claimed in action and first relief also struck -- In any event, declaratory relief not constituting additional relief under Trade-marks Act within meaning of s. 58 -- Trade-marks Act, R.S.C., 1985, c. T-13, ss. 57, 58.