Arrowhead Water Corp. v. Arrowhead Spring Water Ltd.
T-737-92
Rouleau J.
9/2/93
7 pp.
Appeal from decision expunging "Arrowhead Puritas" & Design from register-Registered in 1972, renewed in 1987 for use in association with drinking water-In response to s. 45 notice, appellant filing statutory declaration conceding mark not in use in Canada, but claiming special circumstances, namely appellant's recent purchase of trade mark, unfamiliarity with business, distance between appellant and parent company, justifying absence of use-Also expressing intention to resume use of mark in Canada-Registrar applying test in Registrar of Trade Marks v. Harris Knitting Mills Ltd. (1985), 4 C.P.R. (3d) 488 (F.C.A.) to determine whether circumstances special-Although last date of use could not be substantiated before Registrar, registrant had not used mark in Canada since acquisition in 1987-At date of s. 45 notice, mark not used for one year, nine months-Holding circumstances insufficient to support "special circumstances"-No evidence taking active steps demonstrating serious intention to resume use, merely bare statement-Appeal dismissed-Important in cases where non-use conceded and registrant pleading "special circumstances" that evidence filed provide detail to lend substance to assertion-Insufficient details provided to justify absence of use for almost two years, steps corroborating intention to resume use-Appellant not meeting onus of satisfying Court Registrar failed to properly interpret or consider facts submitted-Trade-marks Act, R.S.C., 1985, c. T-13, s. 45.