Digests

Astrazeneca AB v. Novopharm Ltd.

A-668-01

2003 FCA 57, Stone J.A.

4/2/03

17 pp.

Appeal from order of Kelen J. dismissing appellant's appeal from Registrar of Trade-marks' refusal of appellant's application for registration of yellow tablet design as trade-marks pursuant to Trade-marks Act--Whether mark distinctive--Whether tablets other than appellant's 2.5 mg tablets, marketed in appearance similar to appellant's tablets on relevant date, precludes registration of claimed trade-mark on basis tablets render appellant's mark non-distinctive-- Distinctiveness means some quality in trade-mark which earmarks goods so marked as distinct from other producers of such goods--By Act, s. 2 definition, mark "distinctive" if "actually distinguishes" wares of owner from those of others or adapted so to distinguish them--Evidence fell short of establishing mark adapted so to distinguish in sense mark inherently distinctive and, as such, by very nature of mark proper subject-matter for registration quite apart from use-- Evidence not establishing combination of colour and shape of appellant's tablets had effect of actually distinguishing appellant's wares from others--Definition of "distinctive" not using term "become distinctive"--Use of term "actually distinguishes" connotes distinctiveness acquired through use of mark over period of time, question turning largely on findings of fact--Findings of fact ought not to be interfered with on appeal unless based on some palpable and overriding error affecting Kelen J.'s assessment of facts--Nothing in record indicates Kelen J. committed an error in making factual determinations and, particularly, in finding as matter of fact mark not distinctive--No basis in law for interfering with conclusion of Kelen J.--Appeal dismissed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 2 "distinctive".