Date: 20040126
Docket: T-365-03
Toronto, Ontario, January 26th, 2004
Present: The Honourable Mr. Justice Campbell
IN THE MATTER OF - Section 45 and 56 of the Trade-marks Act, R.S.C. 1985 c. T-13.
AND IN THE MATTER OF - Registration No. TMA 362, 494 for the Trade-mark STEAM owned by Anchor Brewing Company and the maintenance of the said registration by the Registrar of Trade-marks pursuant to Section 45 of the Trade-marks Act
BETWEEN:
SIM & McBURNEY
Applicant
and
ANCHOR BREWING COMPANY
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an appeal pursuant to s.56 of the Trade-marks Act, R.S.C. 1985, c. T-13 (the "Act") of a decision dated January 30, 2003 of the Registrar of Trade-marks, pursuant to s.45 of the Act to maintain the Respondent's trade-mark STEAM for beer (the "STEAM Trade-mark") on the trade-marks register. The Applicant seeks an order allowing the appeal and expunging the STEAM Trade-mark from the trade-marks register.
[2] The Applicant's central argument is that the evidence before the Registrar was equivocal, and consequently, her decision was unreasonable.
A. Factual Background
[3] The Respondent, Anchor Brewing Company, is the owner of Canadian trade-mark registration no. 362,494 for the STEAM Trade-mark, which it registered on November 3, 1989 in association with beer.
[4] On June 10, 1999, at the Applicant's request, the Registrar of Trade-marks issued to the Respondent a notice pursuant to s.45(1) of the Act, requiring the Respondent to establish that the STEAM Trade-mark had been used in Canada in association with beer at any time during the three year period immediately preceding the date of the notice, namely between June 10, 1996 and June 10, 1999.
[5] In response to the notice, the Respondent filed with the Registrar the Affidavit of Frederick L. Maytag III, sworn September 3, 1999.
[6] In a decision dated January 30, 2003, the Registrar of Trade-marks found that the STEAM Trade-mark was in use in Canada during the relevant period in association with beer, thereby maintaining the trade-mark on the registry.
[7] The critical evidence before the Registrar came in the form of the Affidavit of Mr. Frederick Maytag, the owner of Anchor Brewing Company. In the Affidavit, Mr. Maytag swore as follows:
Anchor Brewing Company brews, markets and sells beer in association with the trade-mark STEAM. My company's STEAM beer is sold in cases of 24 on which the trade-mark STEAM is prominently displayed. Attached hereto and marked as Exhibit "A" to this my affidavit is a representative sample of one such case.
In the ordinary course of its business, my company sells its STEAM beer to distributors who export to Canada.
On of my company's distributors that has exported STEAM beer to Canada is Sound Beverage Distribution Inc. of Bellingham, Washington. Attached hereto and marked as Exhibits "B1", "B2" and "B3" to this my affidavit are copies of invoices dated November 5, 1998, February 9, 1999 and May 2, 1999 respectively in respect of the sale of STEAM beer by Sound Beverage Distribution Inc. to the B.C. Liquor Distribution Branch. The references to "ANCHOR" and "ANCHOR 4/6 NR" on the aforementioned invoices refer to my company's STEAM beer packaged in the cardboard case shown in Exhibit "A".
(Applicant's Application Record, pp. 41-42, paras. 2, 3, 4)
[8] With respect to this evidence, the Registrar found as follows:
...Nevertheless, as argued at the hearing by counsel for the registrant, as Mr. Maytag is the owner of the registrant company it is reasonable to assume that as owner (and because of the relationship his company has with Sound Beverage) he would have direct knowledge of the manner of distribution of his company's beer. I would add that nowhere in paragraph 4 is it indicated that his statements are based on "information and belief". Consequently, as there is no clear indication that Mr. Maytag's statements are not based on personal knowledge, I am not prepared to find otherwise. Concerning the exhibits, I am prepared to consider them as they support Mr. Maytag's statements which I have found are statements based on personal knowledge. Accordingly, the statements made in paragraph 4 of the affidavit and the exhibits will be given proper weight.
(Applicant's Application Record, p. 8)
[9] By Notice of Application dated March 4, 2003, the Applicant is appealing the Registrar's decision. The Respondent has filed a further Affidavit of Dean Carter, sworn April 24, 2003. In his Affidavit, Mr. Carter swore that, as Office Manager of a distributor of the Anchor Brewing Company's products, he has personal knowledge that its STEAM beer had, since 1997, been sold in Canada.
B. The standard of review
[10] Decisions of the Registrar, whether of fact, law or discretion, within the Registrar's area of expertise, are to be reviewed on a standard of reasonableness simpliciter. However, where additional evidence is adduced before the Court that would have materially affected the Registrar's findings of fact or exercise of discretion, a judge must come to his or her own conclusion as to the correctness of the Registrar's decision (See Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at para. 51 (Fed. C.A.); leave to appeal to the Supreme Court of Canada dismissed, [2000] S.C.C.A. No. 161).
C. Analysis
[11] In my opinion, Mr. Carter's evidence, were it before the Registrar, could not have affected the Registrar's findings of fact. As a result, the question is whether there is any basis upon which to find that the Registrar's decision is unreasonable. I can find no such basis.
[12] The Registrar accepted Mr. Maytag's evidence as original evidence and, consequently, considered it unequivocal. In my opinion, the evidence so accepted proves use on a balance of probabilities; I can find no reason to disturb this result.
ORDER
Accordingly, the Applicant's appeal is dismissed.
"Douglas R. Campbell"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-365-03
STYLE OF CAUSE: SIM & McBURNEY
Applicant
and
ANCHOR BREWING COMPANY
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 26, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: JANUARY 26, 2004
APPEARANCES BY:
Mr. Kenneth D. McKay
FOR THE APPLICANT
Mr. Steven B. Garland
Mr. Elliott S. Simcoe FOR THE RESPONDENT
SOLICITORS OF RECORD:
SIM HUGHES ASHTON & McKAY LLP
Toronto, Ontario
FOR THE APPLICANT
SMART & BIGGAR
Ottawa, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040126
Docket: T-365-03
BETWEEN:
SIM & McBURNEY
Applicant
and
ANCHOR BREWING COMPANY
Respondent
REASONS FOR ORDER
AND ORDER