Labatt Brewing Co. v. Benson & Hedges ( Canada ) Ltd.
T-777-94
Simpson J.
22/3/96
11 pp.
Appeal by Labatt Brewing Company from Trade-marks Opposition Board's decision to deny application for trade mark "Country Club" on grounds of abandonment prior to application-Labatt's predecessor claimed using trade mark with bottled and draught beer in Manitoba since 1928-Conceded discontinuance in mid-1969 on bottled beer but claimed continues use on kegs of draught beer from mid-1969 to 1974-Also claimed selling bottled stout beer with name "Country Club" from late 1972 to present-Labatt arguing Board erred by considering abandonment relevant to opposition based on Trade-marks Act, s. 30(b)-Molson Breweries arguing abandonment new grounds of opposition and cannot be raised for first time on appeal-Appeal allowed-Argument on abandonment issue legal, not factual and may be made at any level of proceeding-Issue of abandonment not relevant to s. 30(b) determination, therefore, Board lacked jurisdiction to rest decision on it-However, relevant to decide whether there was period of non-use outside ordinary course of trade as "use" defined by Act, s. 4-No such non-use of trade mark established-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 4, 30(b).