Belvedere International Inc. v. Sim & McBurney
T-213-93
Teitelbaum J.
22/12/93
11 pp.
Appeal from decision by Registrar of Trade-marks causing expungement of appellant's trade mark "For Perms Only" -- Trade mark registered on July 10, 1987 in respect of hair care products, namely shampoo, conditioner, hair moisturizer, styling gel, mousse, reconstructive conditioner and hair spray -- On August 29, 1990, Registrar forwarding s. 45 notice to Belvedere International Inc., registered owner of trade mark "For Perms Only"-Exhibit "B" to affidavit of Donald Belvedere showing 22 invoices, all dated May 6, 1987 -- No other sales of "For Perms Only" made for 5 1/2 years -- "Formulation" problem only applying to "For Perms Only" shampoo and conditioner -- No evidence of "formulation" problem with "For Perms Only" hair moisturizer, styling gel, mousse and hair spray -- Registrar finding no special circumstances justifying absence of use from May 27, 1987 to August 29, 1990 -- Under Trade-marks Act, s. 45(3), registration of trade mark liable to be expunged or amended where absence of use not due to special circumstances -- "Special circumstances" to be interpreted as "unusual, uncommon or exceptional" -- Period of non-use herein almost 5 1/2 years, from May 1987 to November 1992 -- Fluctuating market conditions not constituting special circumstances excusing non-use -- Evidence adduced by appellant to establish weak consumer demand sparse -- Evidence of soft consumer demand not substantial enough to conclude Registrar made erroneous finding no special circumstances existed to explain 5 1/2 year period of non-use-Fact appellant resumed use of trade mark not special circumstance justifying interference with Registrar's decision -- Allowing maintenance of mark after long voluntary cessation of use of mark contrary to purpose of s. 45 -- No intention of appellant to re-use trade mark -- Appeal dismissed -- Trade-marks Act, R.S.C., 1985, c. T-13, ss. 45, 56.