Trade-Marks
Practice
Judicial review of Trade-marks Opposition Board’s dismissal of application for leave to amend statement of opposition to respondent’s application to register trade-mark “Black Diamond” for use in association with kitchen utensils, chef’s apparel—Seeking to include new ground that respondent not complying with Trade-marks Act, R.S.C.,1985, c. T-13, s. 30(i)—Applicant, registered owner of trade-mark “Black Diamond” for use in association with cheese—Since Board’s decision based on absence of jurisdiction, decision to be reviewed on standard of correctness—Board misstating issue—Issue not whether s. 22 alone could form grounds of opposition but rather whether s. 38(2) could have resorted to s. 22 to sustain opposition on grounds s. 30(i) requirement not respected because respondent could not have been satisfied entitled to use trade-mark in Canada in association with wares described in application because such use would likely depreciate value attaching to applicant’s registered trade-mark “Black Diamond”, contrary to Act, s. 22—Error leading Board to ignore relevant case law cited by applicant as to scope of Act, s. 30(i)—Application allowed.
Parmalat Canada Inc. v. Sysco Corp. (T-18-08, 2008 FC 1104, Lemieux J., judgment dated October 2, 2008, 20 pp.)