T-2329-87
Canadian Olympic Association (Plaintiff)
v.
Konica Canada Inc. and Brick Communications
Ltd. (Defendants)
INDEXED AS: CANADIAN OLYMPIC ASSN. V. KONICA CANADA
INC. (T.D.)
Trial Division, Denault J.—Toronto, May 23, 24,
25, 1989; Ottawa, March 20, 1990.
Trade marks — Infringement — Injunction — Whether
marks adopted within meaning of ss. 9, 11 Trade-marks Act
— Whether ss. 9, 11 retrospective re prior use of marks
subsequently registered as official trade-marks.
Constitutional law — Distribution of powers — Ss. 9, 11
Trade-marks Act not ultra vires — Parliament not going
beyond trade and commerce power — Not infringing provincial
jurisdiction over property and civil rights.
Construction of statutes — Trade-marks Act — Meaning of
phrase "No person shall adopt in connection with a business,
as a trade-mark or otherwise" — Against rules of statutory
construction to give legislation retrospective effect.
An interlocutory injunction herein had been granted by
Martin J. in November, 1987. This was an application for a
permanent injunction restraining the defendant, Konica, from
publishing its edition of Guinness Book of Olympic Records:
The Complete 1988 Winter & Summer Olympic Schedule. The
defendant first published its book in 1987. The plaintiffs
official registered trade marks are "Olympic", "Summer Olym-
pics" and "Winter Olympics".
The issue was whether Konica had "adopted the marks
within the meaning of the Trade-marks Act and whether
sections 9 and 11 had a retrospective effect so as to prohibit
prior uses of marks registered as official marks. It was also
argued that sections 9 and 11 were unconstitutional.
Held, the application should be denied.
The sale and distribution of the Konica edition did not
violate the plaintiffs official marks. The marks were not adopt
ed by Konica within the meaning of section 9, since they had
already been adopted by Guinness well before Konica distribut
ed its book. Sections 9 and 11 could not be given a retrospective
interpretation where adoption ôr first use took place before the
registration of the plaintiffs trade marks. This interpretation
coincided with the principle that new marks, whether trade
marks or official marks, should defer to marks adopted or
registered prior to registration of a new mark. While it may be
that this decision will create a loophole in plaintiff's monopoly
over the commercial spin-offs of the Games, it is not for the
Courts to take into account policy considerations in interpreting
legislation. Effect must rather be given to the clear provisions
of the legislator. To go against the rules of statutory interpreta
tion and give this legislation retrospective effect would allow
any "public authority" to run roughshod over the rights of
registered trade mark users.
Sections 9 and 11 of the Act are not ultra vires. Parliament
had not overstepped its jurisdiction and gone beyond its trade
and commerce power. The words "or otherwise" in the phrase
"no person shall adopt, in connection with a business, as a trade
mark or otherwise" mean "or in connection with a business in
any other way". Parliament had not prohibited the every day
common use of official marks. Konica was distributing the book
"in connection with a business" otherwise than as a trade mark.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], s. 91(2).
Federal Court Rules, C.R.C., c. 663, RR. 500-507.
Trade-marks Act, R.S.C., 1985, c. T-13, ss. 3, 6(5),
9(1)(n)(iii), 11.
CASES JUDICIALLY CONSIDERED
APPLIED:
Registrar of Trade Marks v. Canadian Olympic Asso
ciation (1982), 139 D.L.R. (3d) 190; 67 C.P.R. (2d) 59;
43 N.R. 52 (F.C.A.); The Queen v. Kruger (1978), 44
C.P.R. (2d) 135 (Reg. T.M.); Canadian Olympic Assn. v.
Allied Corp., [1990] 1 F.C. 769 (C.A.).
CONSIDERED:
Jordan & Ste-Michelle Cellars Ltd. v. Andres Wines
Ltd., T-2820-83, Cullen J., judgment dated 17/4/85, not
reported; Cdn. Olympic Assn. v. Allied Corp. (1987), 14
C.I.P.R. 126; 16 C.P.R. (3d) 80; 13 F.T.R. 93
(F.C.T.D.); Insurance Corporation of British Columbia
v. Registrar of Trade Marks, [1980] 1 F.C. 669; (1979),
44 C.P.R. (2d) 1 (T.D.).
REFERRED TO:
Canadian Olympic Assn. v. Mannington, Mills, Inc.
(1989), 24 C.P.R. (3d) 152 (T.M. Opp. Bd.).
AUTHORS CITED
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Fox, Harold G. Canadian Law of Trade Marks and
Unfair Competition, 3rd ed. Toronto: Carswell Co.
Ltd., 1972.
COUNSEL:
Kenneth D. McKay and Arthur B. Renaud for
plaintiff.
D. H. Jack and Susan A. Goodeve for
defendants.
SOLICITORS:
Sim, Hughes, Dimock, Toronto, for plaintiff.
McDonald & Hayden, Toronto, for defend
ants.
The following are the reasons for judgment
rendered in English by
DENAULT J.: This is an application for a perma
nent injunction restraining the defendant Konica
from publishing or distributing, in any form its
premium edition of the Guinness Book of Olympic
Records. On November 30, 1987 an interlocutory
injunction was granted by Mr. Justice Martin
prohibiting the defendant from "selling, offering
for sale, distributing, advertising, or exhibiting in
public the shrink wrapped film and Olympic
record book". This was the form of the original
Konica premium package; it consisted of three
cartons of Konica colour film placed end to end
and to the left of the Guinness Book of Olympic
Records; the entire package was then shrink
wrapped in cellophane making it impossible for
prospective purchasers to open the book; all that
could be seen was the cover. The cover consists of
an indigo band across the top upon which the
defendant's trade name appears in large white
letters along with its trade mark spectrum under
which appear the full title and subtitle of the book:
Guinness Book of Olympic Records: The Com
plete 1988 Winter & Summer Olympic Schedule.
From the time of service of notice in the inter
locutory injunction until Mr. Justice Martin's
order, the defendant interrupted its sale and distri
bution of the promotional package. The defendant
had initially ordered 100,000 copies of the book
and then made a supplementary order of 25,000
copies. After the injunction it cancelled its supple
mentary order, tried to give the books themselves
without the film to its distributors, and finally
were left with a surplus of 22,000 books. The
parties have agreed that the damages be subject to
a reference under Rules 500 to 507 [Federal Court
Rules, C.R.C., c. 663]. The action between the
plaintiff and the defendant Brick Communications
Ltd. was settled in April 1988.
In order to succeed the plaintiff must establish a
breach of sections 9 or 11 of the Trade-marks
Act, R.S.C., 1985, c. T-13. The relevant sections
are as follows:
9. (1) No person shall adopt in connection with a business,
as a trade-mark or otherwise, any mark consisting of, or so
nearly resembling as to be likely to be mistaken for,
(a) the Royal Arms, Crest or Standard;
(b) the arms or crest of any member of the Royal Family;
(c) the standard, arms or crest of His Excellency the
Governor-General;
(d) any word or symbol likely to lead to the belief that the
wares or services in association with which it is used have
received, or are produced, sold or performed under, royal,
vice-regal, or governmental patronage, approval or authority;
(e) the arms, crest or flag adopted and used at any time by
Canada or by any province or municipal corporation in
Canada in respect of which the Registrar has, at the request
of the Government of Canada or of the province or municipal
corporation concerned, given public notice of its adoption
and use;
(J) the heraldic emblem of the Red Cross on a white ground,
formed by reversing the federal colours of Switzerland and
retained by the Geneva Convention for the Protection of War
Victims of 1949 as the emblem and distinctive sign of the
Medical Service of the armed forces and used by the Canadi-
an Red Cross Society, or the Expression "Red Cross" or
"Geneva Cross";
(g) the heraldic emblem of the Red Crescent on a white
ground adopted for the same purpose as specified in para
graph (J) by a number of moslim countries;
(h) the equivalent sign of the Red Lion and Sun used by
Iran for the same purpose as specified in paragraph (/);
(i) any national, territorial or civic flag, arms crest or
emblem, or official control and guarantee, sign or stamp,
notice of the objection to the use of which as a commercial
device has been received pursuant to the provisions of the
Convention and publicly given by the Registrar;
(j) any scandalous, obscene or immoral word or device;
(k) any matter that may falsely suggest a connection with
any living individual;
(1) the portrait or signature of any individual who is living or
has died within the preceding thirty years;
(m) the words "United Nations" or the official seal or
emblem of the United Nations:
(n) any badge, crest, emblem or mark
(i) adopted or used by any of Her Majesty's Forces as
defined in the National Defence Act;
(ii) of any university, or
(iii) adopted and used by any public authority, in Canada
as an official mark for wares or services,
in respect of which the Registrar has, at the request of Her
Majesty or of the university or public authority, as the case
may be, given public notice of its adoption and use; or
(o) the name "Royal Canadian Mounted Police" or
"R.C.M.P." or any other combination of letters relating to
the Royal Canadian Mounted Police, or any pictorial
representation of a uniformed member thereof.
(2) Nothing in this section prevents the use as a trade-mark
or otherwise, in connection with a business, of any mark
described in subsection (1) with the consent of Her Majesty or
such other person, society, authority or organization as may be
considered to have been intended to be protected by this
section.
and also,
11. No person shall use in connection with a business, as a
trade-mark or otherwise, any mark adopted contrary to section
9 or 10 of this Act or section 13 or 14 of the Unfair Competi
tion Act, chapter 274 of the Revised Statutes of Canada, 1952.
The Plaintiffs Argument
The plaintiff contends that the distribution of
the defendant's Guinness Book of Olympic
Records, first printed and published in 1987, is a
breach of subparagraph 9(1)(n)(iii) and section 11
of the Trade-marks Act. In proving this point,
counsel for the plaintiff has sought to establish
that: (1) the plaintiff, Canadian Olympic Associa
tion, is a public authority; (2) that the title and
subtitle of the defendant's book so nearly resemble
the plaintiffs official marks "Olympic", "Summer
Olympics" and "Winter Olympics" as to be likely
to be mistaken for them; and (3) the adoption of
the offending marks by the defendant occurred in
1987 and that alternatively prior adoption of the
same marks by the defendant's predecessor in title
is equally a breach of sections 9 and 11 of the Act.
The Defendant's Argument
The defendant has argued in response that: (1)
recognition as a public authority must be demon
strated in each case, since it is a characteristic
which is susceptible to change; (2) the plaintiff is
seeking a monopoly over certain words which is
contrary to public order; (3) sections 9 and 11
have not been breached since Konica did not
"adopt" the marks in question, as they were adopt
ed long before the plaintiff's registration of its
official marks by Konica's predecessor in title, and
the defendant submits that registration of an offi
cial mark cannot have retrospective effect; and (4)
the words "or otherwise" in sections 9 and 11 give
the legislation an unacceptably wide scope so as to
offend the ambit of subsection 91(2) of the Con
stitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 1)
[R.S.C., 1985, Appendix II, No. 5]]; only by
reading down those words so as to exclude the sort
of use made by the defendant can the provision be
made infra vires.
Narrowing the issue
The most strongly contested arguments by the
parties concerned the retrospective effect of sec
tions 9 and 11 of the Act. This, I believe, is the
central issue in the case. While I agree that a
public authority must repeatedly demonstrate its
public character when required to do so in a case
such as this, I am satisfied that the Canadian
Olympic Authority continues to meet the two-fold
test of public benefit and government control
established by the Court of Appeal in Registrar of
Trade Marks v. Canadian Olympic Association
(1982), 139 D.L.R. (3d) 190 (F.C.A.), at pages
199 and 200. The defendant relied on a statement
by the Minister for Fitness and Amateur Sport, to
the House of Commons where he indicated that
the government had received certain assurances
from "the Olympic Trust on behalf of Olympic
authorities ... that they will not be concerned with
anyone using names or trade marks prior to 1980
unless it is in direct conflict with the Olympics".
Counsel for the defendant then referred the court
to the case of Canadian Olympic Assn. v. Man-
nington Mills, Inc. (1989), 24 C.P.R. (3d) 152
(T.M. Opp. Bd.), where the C.O.A. sued the
owner of a trade mark in use since 1974 which was
not in direct conflict with the Olympics since the
trade mark in question "JT-88" was used in con
nection with floor tiling. The defendant then
argued that the C.O.A. acted in contempt of its
undertaking to Parliament as reported to the
House of Commons by the responsible Minister,
and alleged that there was therefore no govern
ment control over the C.O.A. and that consequent
ly it no longer met the requirements for recogni
tion as a public authority. Regardless of the weight
to be given in Court to such ministerial statements
as counsel has relied on, I fail to see how the
C.O.A. actions in this case should be affected by
the statement (November 23, 1987) since it was
made two weeks after the action in the present
case had been launched (November 10, 1987).
Moreover, while counsel's argument is well struc
tured with respect to the Mannington Mills case,
supra, I find that the argument provides insuffi
cient grounds for refuting the five reasons given by
the Court of Appeal in 1982 when it held that the
Canadian Olympic Association was indeed a
public authority. To my mind, those five grounds
remain as true today as they were in 1982. (Regis-
trar of Trade Marks v. Canadian Olympic Asso
ciation (1982), 139 D.L.R. (3d) 190 (F.C.A.) at
page 200.)
Secondly, I accept that the title and subtitle of
the defendant's book so nearly resemble as to be
likely to be mistaken for some of the official marks
registered by the plaintiff. The defendant did not
strongly contest that point. Furthermore, it was
established by the Registrar in The Queen v.
Kruger (1978), 44 C.P.R. (2d) 135 (Reg. T.M.) at
page 139 that the resemblance test in subpara-
graph 9(1)(n)(iii) of the Act is even less stringent
than the test for confusion. Resemblance of the
official mark and the adopted mark is the only
factor to be considered, other considerations
deemed relevant in trade mark cases, such as those
listed in subsection 6(5) are not relevant in this
case. Based on the foregoing, I find that the
resemblance test has been met.
Furthermore, I reject the defendant's argument
as to the unconstitutionality of sections 9 and 11.
Counsel for the defendant relied heavily on the
meaning he ascribed to the words "or otherwise".
He submitted that the defendant's use of the mark
"Olympic" was otherwise than as a trade mark, as
it was part of the title that was stipulated for the
book in its licensing agreement with the publisher.
The defendant submits it had no choice under its
contract but to use the title and sub-title already in
use by the publisher. Then the defendant submit
ted that in prohibiting the use of the word "Olym-
pic" other than as a trade mark Parliament has
overstepped• its jurisdiction, and gone beyond its
trade and commerce power and infringed upon the
province's jurisdiction over property and civil
rights. The defendant states that if the words "or
otherwise" are interpreted as the plaintiff suggests
so as to interfere with its legitimate contractual
agreement with the publisher of its premium edi
tion of the Guinness book, then the Court is con
doning an ultra vires intention of Parliament.
Counsel went so far as to suggest that the present
wording of the statute prohibits any use, even
every day common parlance uses, of official marks.
With respect I do not think the Act makes any
such provision. The words "or otherwise" have to
be interpreted in their context. When properly
interpreted, the words cannot have the ultra vires
character which the defendant has imputed to
them. I would recall here the opening words of
both sections 9 and 11, which are as follows:
No person shall adopt, in connection with a business, as a trade
mark or otherwise...
The words "as a trade mark or otherwise" merely
reinforce the main qualifier in those sections which
are the words "in connection with a business".
Thus the words "or otherwise" actually mean "or
in connection with a business in any other way".
The sections do not prohibit uses which have no
commercial purpose. In fact I would think that
they do not even prevent the use of marks unless
the use of that mark is primarily for a business
purpose. Counsel for the plaintiff suggested that if
the plaintiff so desired it could sue Guinness itself,
or any one else who used its official marks in an
editorial context, but that as a matter of internal
policy the Canadian Olympic Association did not
contest the use of its marks in an editorial context.
I have some doubts as to whether the plaintiff
could actually succeed if it reversed its policy and
launched such actions. While our news media and
publishing industry may be strongly influenced by
market incentives, I tend to think the courts must
initially proceed on the assumption that their pri
mary motivation is not profit.
The defendant Konica however is a manufactur
er of photographic equipment and wares; its foray
into the field of Canadian publishing, it may safely
be assumed, is primarily in order to promote its
own products. Thus it is a use "in connection with
a business" albeit otherwise than as a trade mark.
The defendant was required under its licensing
agreement to use the title and sub-title it did,
containing as they do words which may appear to
be the official marks of the plaintiff. The defend
ant's use of the word "Olympic" or of other words
resembling the plaintiff's marks is not a use as a
trade-mark, as that word is defined in the Act.' It
is evident to me that Konica has not adopted the
words "Olympic" or "1988 Winter & Summer
Olympic Schedule" as trade marks. Rather they
' Trade-mark is defined in section 2 of the Act as:
(Continued on next page)
have been adopted in connection with a business
otherwise than as trade marks.
Finally, as for the defendant's public policy
arguments, these, I believe, merely raise consider
ations which can be subsumed under the other
grounds of opposition as an aid to interpretation. If
the plaintiff has any monopoly it is at best a
monopoly over certain uses of certain words and
only in certain contexts. These findings allow me
to narrow the issues to two related questions:
1. Did the defendant "adopt" the marks within
the meaning of the Act?; and, if not,
2. Do sections 9 and 11 have retrospective effect
so as to prohibit prior uses of marks registered
as official marks?
"No person shall adopt"
The defendant's central argument in this case
was that subparagraph 9(1)(n)(iii) cannot be given
retrospective effect. The defendant claimed that
the marks were not adopted by it since they had
been adopted and used by Guinness well before
Konica distributed its book. The defendant states
it did not adopt the mark, since it was already
adopted. Counsel for the defendant referred the
Court to section 3 of the Act which provides as
follows:
3. A trade-mark is deemed to have been adopted by a person
when that person or his predecessor in title commenced to use it
in Canada or to make it known in Canada or, if that person or
his predecessor had not previously so used it or made it known,
when that person or his predecessor filed an application for its
registration in Canada. [My emphasis.]
I think the defendant's argument on this score is
well founded. The uncontradicted evidence of the
defendant is that Bantam Books had been publish-
(Continued from previous page)
2. In this Act,
"Trade-mark" means
(a) a mark that is used by a person for the purpose of
distinguishing or so as to distinguish wares or service:
manufactured, sold, leased, hired or performed by him
from those manufactured, sold, leased, hired or performed
by others,
(b) a certification mark,
(c) a distinguish guise, or
Nil a nrnnnced trade-mark
ing the Canadian edition of the Guinness Book
since the late 1960s, many years before the adop
tion by the plaintiff of its official marks.
However that is just the beginning of the argu
ment; the defendant admits that Guinness, its
predecessor in title, did adopt the mark which the
plaintiff has subsequently registered as an official
mark. In order to escape liability under section 9
the defendant must also establish that the section
does not have retrospective effect. That very issue
was already addressed, as counsel for the plaintiff
suggested, in Jordan & Ste-Michelle Cellars Ltd.
v. Andres Wines Ltd. (T-2820-83, Cullen J., judg
ment dated 17/4/75, not reported) * and also in
Cdn. Olympic Assn. v. Allied Corp. (1987), 14
C.I.P.R. 126 (F.C.T.D.) Cullen J. Both these cases
build on the obiter dicta of Cattanach, J., in
Insurance Corporation of British Columbia v.
Registrar of Trade Marks, [1980] 1 F.C. 669
(T.D.), at page 686 which reads as follows:
From the documents on file in the Registrar's office trans
mitted to the Court under section 60 of the Trade Marks Act
the Registrar was concerned with the effect the prohibition
following upon the notification of the adoption and use of an
official mark would have on trade marks registered in the
normal manner with which the official mark conflicts. This
particular issue is not before me but it appears evident to me
that the normal commercial trade mark registered by a trader
must defer to the official mark adopted and used by a public
authority or like body because that is the legislative intent.
The Court of Appeal has recently rejected that
obiter dicta. In an appeal from the Allied case
[[1990] 1 F.C. 769], the Court dismissed the
appeal by the applicant Allied but held that sec
tion 9 of the Act could not be given retrospective
effect, and that the obiter dicta of Cattanach J.,
went too far. Unlike Cattanach J., the Court of
Appeal gives due weight, in its interpretation, to
the presumption against retrospective intent. Mac-
Guigan J.A., at page 774, supra, refers to the
quotation given above from Cattanach J., and
states:
* Editor's note: This judgment was identical to the judgment
rendered in T.G. Bright & Co. Ltd. v. Andres Wines Ltd.
reported at (1985), 5 C.I.P.R. 110 (F.C.T.D.).
It seems to me that this interpretation goes well beyond the
true intent of Parliament as expressed by the language of
subparagraph 9(1)(n)(iii) of the statute. Subsection 9(1) is not
univocal in its prohibitions, and paragraph 9(1)(n) contains
qualifying words not found in most of the other paragraphs.
For official marks such as the Royal Arms or various recog
nized emblems, there is an absolute prohibition against adop
tion by others, but the wording of paragraph 9(1)(n) is not
absolute.
Section 9 of the Act as a whole deals with adoption, and the
prohibition against adoption is in the future tense ("No person
shall adopt"). Subparagraph 9(1)(n)(iii) therefore forebids the
adoption of a trade mark "so nearly resembling as to be likely
to be mistaken for" a mark adopted by a public authority in
respect of which the Registrar "has ... given" (past tense)
public notice. Consequently, it does not retroactively prohibit
the adoption of marks. It is only prospective in operation.
I do not see that this interpretation is affected by section 11,
since that provision forbids only use of a mark adopted contrary
to section 9. A mark adopted before the giving of public notice
would not be adopted contrary to section 9.
Driedger in his text Construction of Statutes,
2nd ed., Butterworths, 1983, at page 196, offers
the very advice MacGuigan J.A., seems to have
followed in the Allied case:
Thus, the position appears to be that whenever the operation
of a statute depends upon the doing of something or the
happening of some event, the statute will not operate in respect
of something done or in respect of some event that took place
before the commencement of the statute; but if the operation of
the statute depends merely upon the existence of a certain state
of affairs, the being rather than the becoming, the statute will
operate with respect to a status that arose before the com
mencement of the statute, if it exists at that time. Having
decided that a statute is not by reason of the retrospective rule
precluded from operating in particular circumstances, there is
the further, and" unrelated, question whether the statute is
precluded from so operating for the reason that it impairs
existing rights.
In sections 9 and 11 of the Trade-marks Act,
there is in fact no ambiguity, no wording which
could give rise to the suggestion that the section
was intended to have retrospective effect. The
phrase in question in the present case is "No
person shall adopt". There is no use of the past or
perfect tense to suggest a retrospective intention.
In fact the wording in respect of official marks
suggests the opposite: "9. (1) No person shall
adopt ... (n) any .. . mark (iii) adopted and used
by any public authority ... in respect of which the
Registrar has . .. given public notice". This draft-
ing indicates that the statute was clearly intended
to merely have a prospective application. Thus the
same logic that informed the Court of Appeal's
finding in Allied, compels me to conclude that
sections 9 and 11 cannot be given a retrospective
interpretation. Even if the wording were more
supportive of such an intention the fact situation in
question—the adoption, or first use, of a mark—is
an event, and one which took place before the
registration of the plaintiff's marks, and thus
before the statute took effect in respect of those
marks. The case law and the authors suggest that
a retrospective intent cannot be imputed to Parlia
ment in such circumstances. Moreover not only is
the presumption against retrospective operation
not rebutted here, neither is the presumption
against interference with vested rights.
Only by clearly expressed statutory language
could Parliament override the vested rights of
Guinness Books and its licensees such as Konica.
The statute makes no such provision; in fact it
leaves no room for ambiguity and is expressly
drafted in terms which, in accordance with well
known interpretive rules, cannot be given retro
spective effect. Consequently, sale and distribution
of the Konica edition of the Guinness Book of
Olympic Records and the shrink wrapped film and
book package do not violate the Canadian Olym-
pic Association's official marks.
I am confirmed in this opinion by virtue of the
fact that to hold otherwise would set a dangerous
precedent. Indeed it would allow any "public
authority" to run roughshod over the vested rights
of users of registered trade marks, and leave them
without any remedy. I prefer an interpretation
which holds true to the principle that new marks,
whether they be trade marks or official marks,
should defer to marks adopted or registered prior
to registration of the new mark, since the newcom
er had the choice of finding a more innovative
mark in the first place. (See Fox, Canadian Law of
Trade Marks and Unfair Competition, page 178).
It may be that this decision will create a small
loophole in the Canadian Olympic Association's
monopoly over the commercial spin-offs of mar
keting wares in association with Olympic Games.
To that degree the decision may appear to be
impolitic. On the other hand public policy could
also be invoked to support any decision that would
help to halt the commercialization of amateur
sport. However as Cattanach J., stated in Insur
ance Corporation of British Columbia v. Registrar
of Trade Marks, [1980] 1 F.C. 669, at page 684,
it is not for the Courts to weigh the policy or
impolicy of legislative enactments; they must
instead "administer the law as [they] find [...]
it", and give effect to the clear statutory provisions
of the legislator.
The application for a permanent injunction is
refused, with costs to the defendant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.