Dura Undercushions Ltd. v. BASF Corp.
T-2131-97
Cullen J.
17/9/98
13 pp.
Appeal from Registrar's decision rejecting opposition of applicant to registration of trade-mark "Duraplush" for use in association with carpet underlay-However, respondent no longer pursuing application to register trade-mark and abandoned its application-Registrar confirmed application treated as withdrawn or discontinued-Applicant still pursuing appeal on grounds Registrar made errors of fact and law in rejecting opposition, which should not be permitted to stand-Matter moot-As application for registration abandoned, no longer any source of dispute, nor can rights of either Dura or BASF be affected by outcome of appeal-No longer any application or trade-mark in suit-Argument decision under appeal will continue to stand as precedent and will adversely prejudice Dura in future not sufficient for Court to exercise discretion to hear appeal-Argument highly suspect-Proper to assume Registrar would consider any future applications or oppositions on particular merits and in accordance with Act-Therefore, no practical effect on rights of Dura or BASF-Furthermore, in case at bar, no other proceedings between other parties, therefore appellant's argument mootness not issue and case not moot fails-Fact one of respondent's licensees continuing to use trade-mark irrelevant as licensee not party to action and its use of mark not in issue-And any determination regarding respondent not necessarily applying to licensee-Appellant's argument even if case moot, third parties will cite decision in other proceedings against applicant without foundation as any future proceedings will be decided according to their facts and on their own merits, with counsel present for each party.