T-4899-80
Canadian Olympic Association (Appellant)
v.
Registrar of Trade Marks (Respondent)
Trial Division, Mahoney J.—Toronto, October 20;
Ottawa, November 12, 1981.
Trade marks — Appeal from respondent's refusal to comply
with the appellant's request that public notice be given pursu
ant to subpara. 9(1)(n)(iii) of the Trade Marks Act of the
appellant's use and adoption of a number of marks — Appel
lant is incorporated under Part II of the Canada Corporations
Act — Appellant's activities are entirely for the benefit of
Canada and Canadians in response to generally-recognized
national needs, and not for the profit of its members —
Appellant is the only entity exercising the power to pursue
certain public objects and is accepted by the community as
exercising that power as of right — Whether the appellant is a
"public authority" — Appeal allowed — Trade Marks Act,
R.S.C. 1970, c. T-10, ss. 9(1)(n), 56 — Olympic (1976) Act,
S.C. 1973-74, c. 31 as amended by SC. 1974-75-76, c. 68, s. 4
— Canada Corporations Act, R.S.C. 1970, c. C-32, s. 154.
APPEAL.
COUNSEL:
Donald F. Sim, Q. C. and Kenneth D. McKay
for appellant.
Graham Garton for respondent.
SOLICITORS:
Donald F. Sim, Q.C., Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal under section
56 of the Trade Marks Act' from the respondent's
refusal to comply with the appellant's request,
pursuant to subparagraph 9(1)(n)(iii) of the Act,
that public notice be given of the appellant's use
and adoption of a number of marks. Paragraph
9(1)(n) provides:
9. (1) No person shall adopt in connection with a business, as
a trade mark or otherwise, any mark consisting of, or so nearly
resembling as to be likely to be mistaken for
' R.S.C. 1970, c. T-10.
(n) any badge, crest, emblem or mark
(i) adopted or used by any of Her Majesty's Forces as
defined in the National Defence Act,
(ii) of any university, or
(iii) adopted and used by any public authority in Canada
as an official mark for wares or services,
in respect of which the Registrar has, at the request of Her
Majesty or of the university or public authority as the case may
be, given public notice of its adoption and use;
The sole issue is whether or not the appellant is a
"public authority" within the contemplation of
subparagraph (iii).
The respondent's decision was rendered Septem-
ber 22, 1980. The respondent had complied with
numerous requests by the appellant under sub-
paragraph 9(1)(n)(iii) before September 22, 1980,
and has complied with at least one other by the
appellant since that date. The respondent also,
during the years 1971 to 1979 inclusive, afforded
the benefit of the provision to the following, among
others: Arctic Winter Games Corporation, Big
Brothers of Canada Association, Pacific National
Exhibition, The XI Commonwealth Games
Canada (1978) Foundation, the Comité
organisateur de championnat mondial de canoë-
kayak 1979 Inc. and The Fathers of Confederation
Buildings Trust.
Subsection 9(1) is lengthy, prohibiting the com
mercial exploitation of specified things emblematic
of or identified with royalty and viceroyalty; gov
ernments: federal, provincial, municipal and for
eign; designated institutions, including the Red
Cross, the United Nations and the R.C.M.P.;
living or recently dead individuals; and the scan
dalous, obscene or immoral. It is not necessary to
recite the section. There is nothing within it that
compels one to the conclusion that Parliament
intended the term "public authority" necessarily to
be limited to "governmental authority". While
Parliament made particular provision for the
emblem of the Red Cross, which is not a govern
mental authority, it also made particular provision
for the R.C.M.P., which certainly is. It was, how
ever, found expedient to provide specifically that
the Organizing Committee of the 1976 Olympic
Games, a Quebec corporation, was a public au-
thority for purposes of subparagraph 9(1)(n)(iii). 2
The International Olympic Committee, the
"I.O.C.", will deal only with the appellant with
respect to Canada's holding and participation in
Olympic Games. Likewise, the Pan American
Sports Organization will deal only with the appel
lant vis-Ã -vis Pan American Games. The I.O.C.
expressly requires that a national Olympic com
mittee not be an agency of government.
The appellant is incorporated under Part II of
the Canada Corporations Act.' It must, therefore,
by definition, be a corporation "carrying on, with
out pecuniary gain to its members, objects ... of a
national, patriotic, religious, philanthropic, chari
table, scientific, artistic, social, professional or
sporting character, or the like ...". If it decides to
surrender its charter, its assets are to be disposed
of by the Canadian government in cooperation
with the I.O.C.
I do not propose to review the extensive evidence
as to all of the appellant's activities, its dependence
on the Canadian government for a substantial part
of its funding or the inference invited to be drawn
from that. It is enough to say that those activities
are carried out in pursuance of and are entirely
compatible with the objects prescribed in its Let
ters Patent:
(a) to arouse and maintain the interest of the people of
Canada in, and to obtain their support of, creditable and
sportsmanlike participation and representation of Canada in
the Olympic Games and the Pan American Games;
(b) to develop and protect the Olympic movement and
amateur sport in Canada;
(c) to stimulate the interest of the people, particularly of the
youth of Canada, in healthful physical, moral and cultural
education through sportsmanlike participation in competi
tions in accordance with amateur rules;
(d) to exercise exclusive jurisdiction, either directly or
through its constituent members or committee, [sic] over all
matters pertaining to the participation of Canada in the
Olympic Games and in the Pan American Games, including
the representation of Canada in such Games, and over the
2 The Olympic (1976) Act, S.C. 1973-74, c. 31 as amended
by S.C. 1974-75-76, c. 68, s. 4.
3 R.S.C. 1970, c. C-32.
organization of the Olympic Games and the Pan American
Games when celebrated in Canada, and in furtherance there
of to comply with and enforce all the rules and regulations of
the International Olympic Committee;
(e) to select and obtain for Canada the most competent
amateur representation possible in the competitions and
events of the Olympic Games and of the Pan American
Games;
The remaining objects deal with finance. On the
evidence, the appellant exercises either exclusive or
ultimate control, in and for Canada, of the activi
ties contemplated by objects (a), (b), (d) and (e). I
am sure that it is by no means the only entity
actively pursuing object (c).
Jurisprudence as to the definition of what is, or
is not, a public authority has generally, if not
invariably, arisen in the context of legislation that
imposed special limitations on rights of action
against public authorities. Halsbury sums it up as
follows: 4
A public authority may be described as a person or administra
tive body entrusted with functions to perform for the benefit of
the public and not for private profit. Not every such person or
body is expressly defined as a public authority or body, and the
meaning of a public authority or body may vary according to
the statutory context.
I think it fair to say that the issue in the jurispru
dence has been the public nature of the authority
rather than whether the person or body has been
an authority. It is otherwise here.
The relevant definition of "public" in The
Oxford English Dictionary is:
Of or pertaining to the people as a whole; that belongs to,
affects, or concerns the community or nation;
and The New Webster Encyclopedic Dictionary
definition includes:
Not private; pertaining to the whole people; relating to, regard
ing, or affecting a state, nation, or community ... belonging to
people in general ... regarding not private interest, but the
good of the community ....
As to "authority", the definitions respectively,
include:
4 Halsbury's Laws of England, 4th ed., Volume 1, pp. 9-10.
Those in authority; the body or persons exercising power or
command.
and:
... a person or persons exercising power or command ....
The appellant's public character is manifest.
What it does is done, not for the profit of its
members, but entirely for the benefit of Canada
and Canadians in response to generally-recognized
national needs. It is accepted, by the Canadian
community, as the entity having the exclusive right
to do a number of those things in and in relation to
Canada and Canadians. It has been accorded, by
its incorporation, the power necessary to do those
things. By accepting the appellant's self-pro
claimed exclusive role, the Canadian community
has entrusted the appellant with functions to per
form for the public's benefit as effectively as if by
legislative mandate.
In reaching the conclusion that the appellant is
a public authority within the contemplation of
subparagraph 9(1)(n)(iii) of the Trade Marks
Act, I do not regard the stated objects in the
Letters Patent as determining the issue except to
the extent that they are public, not private,
objects. If it were otherwise, the appellant would
fail at that hurdle. What is crucial is that the
appellant does, in fact, pursue those objects; that
the Canadian community wants them pursued;
that the appellant is, in fact, the only entity exer
cising the power to pursue them and is accepted by
the community as exercising that power as of
right.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.