TRADE MARKS |
Expungement |
Footlocker Group Canada Inc. v. Steinberg
T-2094-02
2004 FC 717, Russell J.
18/5/04
23 pp.
Appeal pursuant to Trade-marks Act (Act), s. 56 from Registrar of Trade-marks' decision expunging registration for trade-mark "Woolworth" pursuant to Act, s. 45--Whether use of trade-mark during relevant period can be attributed to registered owner--Applicant showing use of trade-mark during relevant period but not showing who user was--No connection made between owner of trade-mark and store where used in Toronto, and no explicit connection between sales figures and owner of trade-mark--Hearing officer found that "It is true that from the sales figures, it appears that retail store services were provided by the registrant during relevant period"--Decision not specific-ally stating sales figures attributable to registrant in some way--Officer merely assumed so--Applicant not providing specifics regarding nexus between Toronto store where trade-mark appears, sales figures and registered owner, Venator Group Canada Inc.-- When looking at use issues, reasonable inferences can be drawn from less than perfect affidavits--No reason why inferences should not be drawn in present situation where use established but issue whether use by registered owner-- Registrar had clear evidence from register that Venator Group Canada Inc. registered owner of trade-mark at material time-- Because applicant chose to demonstrate use during relevant period by reference to specific store at specific location and by reference to sales figures, particularly crucial to connect registered owner of trade-mark to those specific facts--Gap in affidavits to connect such use with registered owner too great--Issue so fundamental that omission to deal with it suspicious--While no particular kind of evidence must be provided in response to s. 45 notice, and all registrant must do is establish prima facia case of use, evidence not showing prima facie use by registrant--Decision not unreasonable because, on basis of evidence before Registrar, no nexus established between claimed uses during relevant period and trade-mark owner--Appeal dismissed--Trade- mark expunged--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 45 (as am. by S.C. 1993, c. 44, s. 232; 1994, c. 47, s. 200), 56(1).