Lander Co. Canada Ltd. v. Alex E. Macrae & Co.
T-506-92
Rouleau J.
8/2/93
7 pp.
Appeal from Registrar's decision expunging trade mark "Fascination" for failure to file evidence of use-Appellant owning trade mark "Fascination" for use in association with 80 different wares-Only used for short period in 1988 for two products in hair care field-Appellant filing no evidence in response to s. 45 proceedings-On appeal, argued special circumstances, namely recession, introduction of Goods and Services Tax, signing of Free Trade Agreement, cross-border shopping, justifying non-use-Court may only intervene with Registrar's decision when unequivocally convinced error on facts-Appeal dismissed-Onus on registered owner to establish special circumstances excusing non-use-Test for special circumstances justifying non-use set out in Registrar of Trade Marks v. Harris Knitting Mills Ltd. (1985), 4 C.P.R. (3d) 488 (F.C.A.)-Must consider length of time during which trade mark not in use; whether owner's reasons for not using trade mark due to circumstances beyond control; whether serious intention to shortly resume use-Appellant not using trade mark for three years-"Special circumstances" meaning "unusual, uncommon or exceptional"-Poor economic conditions prevailing in 1988 not "special circumstances" pursuant to s. 45-Recession not uncommon or exceptional situation-Market conditions fluctuate-Decision to cease use of trade mark voluntary-Mere intention to resume use not satisfactory-Must be substantiated by factual elements such as purchase orders or specific date of resumption-No evidence of intention to resume use-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 45, 56.