Labatt Brewing Co. v. Molson Breweries, A Partnership
T-646-95
Heald D.J.
28/5/96
25 pp.
Appeal from Trade Marks Opposition Board's decision rejecting appellant's application for registration of trade mark "Club Design with Border"-Registrar refusing application on grounds mark not used in Canada by Labatt since date claimed in application within meaning of Trade Marks Act, s. 38(2)(a)-Registrar making no finding with respect to third ground of opposition raised by Molson-Decision of Registrar representing finding of fact and not exercise of discretion-Appeal court therefore need not exercise same degree of restraint as if decision discretionary-On issue of admissibility of affidavit evidence, Federal Court R. 332(1) subject to common law exceptions to hearsay rule-Hearsay affidavit evidence admissible when evidence meets test of necessity and reliability-On issue of evidentiary burden, applicant having onus to comply with Trade-marks Act, s. 30-Opponent having evidentiary burden to disprove applicant's alleged facts when opposition based on allegations of fact-When opponent raising legal argument as to inferences to be drawn from facts alleged by applicant, no such burden-Registrar not erring in basing decision on ground of opposition on which opponent did not adduce evidence-On issue of refusal of application on basis of non-compliance with Act, s. 30(b), Registrar not erring in determining as matter of first impression, trade mark applied for, as component in label applied to Labatt's Country Club brand beer, would not be perceived as separate trade mark-Registrar erring in not making finding use of mark on sealing tape on packages in 1957 constituted use within meaning of Act, s. 4(1) and therefore erring in refusing Labatt's application on basis of non-compliance with Act, s. 30(b)-Registrar not erring in failing to consider evidence showing display of trade mark applied for on promotional material as such display not constituting use within meaning of Act-Appeal allowed-Matter referred back to Registrar for rehearing and determination on third ground of opposition-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 4(1), 30(b), 38(2)(a)-Federal Court Rules, C.R.C., c. 663, R. 332(1).