Quarry Corp. v. Bacardi & Co.
T-699-96
Lutfy J.
13/12/96
8 pp.
Appeal from expungement of trade mark "Castillo" from register pursuant to Trade-marks Act, s. 45(4) when person then registered as owner not filing evidence required by Registrar's notice issued pursuant to s. 45(1)-S. 45(1) permitting Registrar to give notice to registered owner of trade mark requiring owner to furnish affidavit or statutory declaration showing with respect to each of wares specified in registration whether trade mark in use in Canada at any time during two-year period immediately preceding date of notice-"At any time" indicating single sale during two-year period immediately prior to notice sufficient-Purpose of s. 45 proceeding to rid register of dead wood-Registered owner must "show" use of trade mark with reliable evidence of at least one sale within twoyear period immediately preceding date of notice-Appellant relying on single sale of 41 cases of "Castillo" rum on November 21, 1994 to Liquor Control Board of Ontario-Appellant establishing acquired rights as owner of trade mark in 1992-Affidavit, certificate of origin establishing, for purpose of s. 45 proceeding, party identified by appellant as licensee producer of rum at time of transaction-Evidence disclosing bona fide sale-As taking place long before respondent's request for issuance of s. 45 notice, transaction in normal course of trade-S. 45 interpreted to give effect to NAFTA, Art. 1708(8), providing registration may be cancelled for reason of non-use only after uninterrupted period of at least two years of non-use-November 21, 1994 transaction bona fide use in Canada in normal course of business of appellant's trade mark by licensee through distributor-Appeal allowed-Trademarks Act, R.S.C., 1985, c. T-13, s. 45 (as am. by S.C. 1993, c. 44, s. 232)-North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, [1994] Can. T.S. No. 2, Art. 1708(8).