TRADE MARKS |
Registration |
Novopharm Ltd. v. AstraZeneca AB
T-1470-99, T-1471-99
2003 FC 1212, Dawson J.
17/10/03
13 pp.
Appeals by Novopharm Limited from two decisions of Registrar of Trade-marks rejecting Novopharm's opposition to application made by Astra to register trade-mark in relation to tablets containing felodipine--After appeals to Trial Division, Court of Appeal, matter back before Court to determine whether as of date of opposition, tablets marketed in appearance similar to Astra's 5 mg, 10 mg tablets render Astra's marks non-distinctive, thereby preclude registration of trade-mark--Term "distinctive" defined in Trade-marks Act, s. 2--Not open to Astra to assert proposed trade-mark in respect of pink tablets acquired distinctiveness--Colour, shape of Astra's 5 mg, 10 mg felodipine tablets not inherently distinctive, red-brown mark has not acquired distinctiveness so as to distinguish wares from wares of others--Where active ingredient as such not claimed in trade-mark, applicant must show through use over time colour, shape of tablets distinguishes it from other manufacturers' tablets-- Pharmacists not dispensing felodipine to significant degree on basis of colour, shape--Evidence failing to establish on balance of probabilities shape, colour of red-brown tablet actually distinguishes Astra's tablets from tablets of other manufacturers--Appeals allowed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 2 "distinctive" (as am. by S.C. 1993, c. 15, s. 57; c. 44, ss. 225, 236(1)(b); 1994, c. 47, s. 190).