| Citation: |
CIBC World Markets INc. v. Stenner Financial Services Ltd., 2010 FC 397, [2010] 2 F.C.R. D-11 |
T-2216-07 |
Trade-Marks
Expungement
Applicants seeking expungement of trade-mark STENNER, as constituting surname which was not distinctive at time of registration, commencement of expungement proceedings—Applicant also contending respondent never using trade-mark alone before registration—Parties arguing about shifting onus, i.e. respondent having to establish entitlement to exception from prohibition against surnames, applicant then having onus to show mark invalid—Shifting onus myth dispelled—Registered trade-mark presumed valid until person seeking expungement can prove otherwise, as clearly stated in Emall.ca Inc. v. Cheaptickets and Travel Inc., 2008 FCA 50, [2009] 2 F.C.R. 43—Evidence confirming lack of actual use of trade-mark before registration since respondent was always using STENNER in conjunction with other words—Trade-mark never acquiring any distinctiveness—Applications allowed.
CIBC World Markets Inc. v. Stenner Financial Services Ltd. (T-2216-07, 2010 FC 397, Phelan J., judgment dated April 13, 2010, 18 pp.)