CSC Continuum Inc. v. Sterling Software Inc.
T-2707-97
Evans J.
30/10/98
5 pp.
One day before hearing of appeal from Trade-marks Opposition Board decision, appellant withdrew appeal in view of respondent's amendments to trade mark application-Appellant contending entitled to costs on basis of "result of the proceeding" in Federal Court Rules, 1998, r. 400(3)(a)-Respondent contending entitled to costs, invoking r. 402 (respondent entitled to costs where appellant discontinues appeal)-Respondent also put in evidence letter dated January 1998 in which proposed amendments to application provided appellant's appeal discontinued and accordingly relied on r. 420 (offer to settle not revoked)-Result of proceeding factor favouring appellant-Moreover, given reason for discontinuance of appeal, respondent not entitled to costs by virtue of r. 402-Also, r. 420 not applicable herein as no judgment rendered on appeal-However, written offer to settle and settlement after amendment in exactly same way as proposed in written offer taken into account under r. 400(3)(e)-Consequently, neither party made in full its claim for costs-However, appellant's failure to accept respondent's written offer weighing more heavily than fact appellant has ultimately achieved substance of what it sought without need to proceed with its appeal-Accordingly, respondent entitled to some of its costs on motion, and pursuant to r. 400(4), lump sum of $3,500 awarded to respondent in lieu of assessed costs-Federal Court Rules, 1998, SOR/98-106, rr. 400(3)(a), (e), (4), 402, 420.