GSW Inc. v. Canada ( registrar of Trade-marks )
T-1652-98
Campbell J.
29/6/99
10 pp.
Appeal from decision of Trade-marks Opposition Board under Trade-marks Act, s. 56-Applicant seeking to register trade-mark "Sta-Dry" in Canada in relation to sub-mersible, utility pumps-Application opposed by respondent, Sta-Rite Industries, Inc. on basis mark "clearly descriptive of applicant's wares", therefore excluded from registration by virtue of Act, s. 12(1)(b)-Board refusing applicant's application for registration-Applicant's appeal based on "filed fresh evidence"-Respondent contesting admissibility of "fresh" evidence tendered by applicant-Practice having developed within intellectual property bar in trade-mark litigation state of register can be proved by sources such as CD-ROM source advanced herein-Acceptable practice if on consent, or if required standard of proof met-Counsel for respondent putting applicant to legal test of admissibility as source used unknown to him-Since reliability of source not satisfactorily proved, and since no exception to hearsay rule has been shown to apply, CD-ROM evidence inadmissible-No "fresh evidence" before Court warranting interference with Board's decision-No error in law, fact in Board's decision, no different evidence before Court than that before Board-Application dismissed-Trademarks Act, R.S.C., 1985, c. T-13, ss. 12(1)(b), 56.