Federal Court Decisions

                                                                       

Date: 19981230

Docket: T-713-97

                       In the matter of Sections 57 and 58 of

                   the Trade-marks Act (R.S.C. 1985 c. T-13)

                 In respect of an Application for Expungement

                                 of the Registration of the

                   Trade-mark BOOSTER No. TMA 026,408

BETWEEN:

                                     JEAN PATOU INC.

                                                                                            Applicant

                                                 - and -

                       LUXO LABORATORIES LIMITED

                                                                                        Respondent

                                REASONS FOR ORDER

LUTFY J.:

[1] The applicant, Jean Patou Inc., disputes the validity of the Canadian registration of the trade-mark BOOSTER in association with beauty and hair salon products. This application to expunge the trade-mark BOOSTER is only one of several related proceedings.

BACKGROUND

[2] Jean Patou Inc. is the distributor and exclusive licensee in North America of the perfumes and other beauty products of Jean Patou, S.A. of France. Patou is seeking to market, in Canada, certain of its wares under the trade-mark BOOSTER. Since 1995, Patou has launched proceedings which challenge the registration of this trade-mark and has filed applications for the registration of its own similar marks.

[3] The respondent, Luxo Laboratories Limited, manufactures, distributes and sells hair care products, aftershave, bath and other beauty products. It operates from Toronto, Ontario and is the current registered owner of the trade-mark BOOSTER.

[4] The trade-mark in issue was first registered in Canada in 1920 by The Canadian Booster Company, Limited. Over the past seventy years, there have been three subsequent registered owners of this mark. In 1989, Luxo acquired its rights to the registration by way of assignment from the immediately previous registrant. Luxo's registration of the trade-mark BOOSTER is for use in association with these wares:

Dandruff remedy and hair tonic, hair cream, hair dressing, head rubs, aftershave, cologne, facial creams, shampoo, hair spray, cream rinse, styling lotions, atomizer dispensers.

[5] On August 31, 1995, Patou filed its application to register the trade-mark BOOSTER in association with the following wares:

Soaps, perfumery, essential oils, hair care preparations, toiletries namely toilet water, after-shave, shaving foam, shower gel, shampoo, bath oils, bath powders, bath creams, body creams, body lotions, anti-perspirants and deodorants.

On January 16, 1996, an examiner of the Trade-marks Office notified Patou that its application did not appear to be registrable because it was confusing, pursuant to paragraph 12(1)(d) of the Trade-marks Act,^[1] with Luxo's mark. Hair care preparations, aftershave and shampoo were wares subsequently deleted from Patou's original application for registration. Further, Patou limited the use of its proposed trade-mark to "the cosmetics and perfumery markets excluding barber shop and hair salon markets". Patou's proposed application for its BOOSTER trade-mark was then advertised. Luxo has since filed a statement of opposition and, as a result, the application is still pending before the Registrar.

[6]         On September 27, 1995, Patou's solicitors requested that the Registrar issue a notice pursuant to section 45 requiring Luxo to show that its trade-mark was in use in Canada, with respect to its specified wares, during the previous three years. After reviewing Luxo's affidavit evidence and the parties' submissions, the senior hearing officer concluded that Luxo had established use of its mark concerning certain, but not all, of its wares. Her two principal conclusions were stated as follows:

a)      ... [as] the evidence shows use by [Luxo] during the relevant period of the trade-mark BOOSTER ... in association with "dandruff remedy and hair tonic, hair cream, aftershave, facial cream, styling lotion and shampoo", I conclude that the registration ought to be maintained for such wares.^[2]

b)    ... as the evidence fails to show use with the wares "hair dressing, head rubs, cologne, hair spray, cream rinse and atomizer dispensers", I conclude that such wares ought to be deleted from the statement of wares in the registration.^[3]            

Both Luxo and Patou have appealed this decision to the Federal Court of Canada.^[4] Neither appeal has yet been heard.

[7]         On April 11, 1997, Patou applied for the registration of the trade-mark JEAN PATOU BOOSTER and Design in association with the same wares specified in its application of August 31, 1995 for the trade-mark BOOSTER, supra paragraph 5. The application does not disclaim the exclusive right to the use of the word "booster". Nor does the application, unlike Patou's earlier application for the registration of BOOSTER, limit the marketing of the products, designated in the proposed statement of wares, to any specific market.

[8]         On April 16, 1997, Patou filed this application under section 57 of the Trade-marks Act. Patou seeks: (a) an order expunging Luxo's trade-mark BOOSTER; or (b) an order amending the entry in the register by adding the words "for the hair salon market" to the description of Luxo's wares.

[9]         Finally, on April 29, 1997, Luxo received a notice issued by the Registrar pursuant to section 44 of the Trade-marks Act requiring it to provide information concerning its trade-mark BOOSTER, as if an application to register that mark was being made on the date of the request.

THE ISSUES

[10]       Patou's application for the expungement of the trade-mark BOOSTER raises two issues: (a) was the trade-mark BOOSTER distinctive of Luxo's wares when this proceeding was commenced, pursuant to paragraph 18(1)(b) of the Act; and (b) if so, has Luxo abandoned the trade-mark through non-use, pursuant to paragraph 18(1)(c) of the Act?

[11]       If the trade-mark is found to be valid and is not expunged, Patou seeks an order from this Court amending the entry in the register so that Luxo's use of its trade-mark in association with its wares be limited "for the hair salon market". This raises two further issues, namely, the jurisdiction of this Court to grant this relief and the appropriateness of doing so in this case.

[12]       Both parties agree that Patou is an interested person within the meaning of section 57 and that the relevant date to determine the issue of distinctiveness is April 16, 1997, the date this proceeding was commenced.

ANALYSIS

[13]       It has been said that distinctiveness is the essence of any protectable trade-mark and as such is the foundation of trade mark law.^[5] In his authoritative work on the law of trade-marks, Dr. Fox notes: "[t]he fundamental idea of a trade-mark is that it shall indicate that a purchaser may take that mark as a warranty that the goods stamped with it have come from the particular source of the goods with which he has hitherto been pleased."^[6] If a trade-mark loses its distinctiveness, the reasons underlying its protection cease to exist and it is liable to be expunged according to section 57(1) of the Act.

Is the trade-mark BOOSTER distinctive of Luxo's wares?

[14]       Patou claims that the trade-mark BOOSTER registered to Luxo has lost its distinctiveness for one or more of the following reasons: (i) it is clearly descriptive of the wares it is associated with; and (ii) it is not distinctive of the wares of the registered owner but of its predecessor in title.

i)    Is the word "Booster" clearly descriptive of Luxo's wares?

[15]       Paragraph 12(1)(b) provides that a trade-mark is not registrable if it is "clearly descriptive ... of the character or quality of the wares ... with which it is used".

[16]       On the evidence, Patou has not established that the word "booster" is a clearly descriptive term for the type of hair care products described in Luxo's list of wares.

[17]       First, the affidavit evidence provided by Patou is limited in scope. The affidavit of an investigator hired by Patou affirmed that one individual, when responding to a telephone query, disclosed that she sold Luxo's BOOSTER products only after being prompted by a supplementary request for "Canadian" Booster products. Even if this hearsay evidence were admissible, it is anecdotal and is limited to the experience of one person. As such, it is not sufficient to establish that the word "booster" is clearly descriptive.

[18]       Patou also provided a direct statement from an individual who sells "Curl Booster" but not Luxo's products. This statement is no more relevant to the issue of "clearly descriptive" than is the list of almost fifty registered marks containing the word "booster". BOOSTER has been disclaimed in approximately ten of these registrations and only once in the beauty product industry: AVON COLLAGEN BOOSTER. In that instance, BOOSTER is used as the nominative form of the verb "to boost" to describe what the Avon product will do in a generic or descriptive sense. In the case of Luxo's registration, there is no evidence that BOOSTER describes the action of any of its products. The mark, therefore, is not used in a descriptive manner.

[19]       Finally, the dictionary entries introduced by the parties do not define "booster" in relation to hair products.

[20]       In summary, while BOOSTER may be a weak mark, as evidenced by the number of current registrations, I cannot conclude that the word is clearly descriptive. This finding is consistent with Patou's own decision to seek its registration of the trade-mark BOOSTER and its failure to voluntarily disclaim BOOSTER in its subsequent application to register JEAN PATOU BOOSTER and Design.

ii) Is the trade-mark BOOSTER distinctive of the wares sold by Luxo or those of the original registrant, The Canadian Booster Company, Limited?

[21]       The definition of "trade-mark"^[7] has two principal components: the mark must be "used" by its owner; and, it must distinguish the goods or services of its owner, be they "manufactured, sold, leased, hired or performed", from the goods or services of others. According to this definition, the registrant of a trade-mark may be, like the respondent in this case, a manufacturer or a seller of the wares associated with the mark.^[8]    The Act also sets out the definitions of "distinctive", "use" and "deemed use" as follows:

"distinctive", in relation to a trade-mark, means a trade-mark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them;

...

"use", in relation to a trade-mark, means any use that by section 4 is deemed to be a use in association with wares or services;

...

When deemed to be used

4. (1) A trade-mark is deemed to be used in association with wares if, at the time of the transfer of the property in or possession of the wares, in the normal course of trade, it is marked on the wares themselves or on the packages in which they are distributed or it is in any other manner so associated with the wares that notice of the association is then given to the person to whom the property or possession is transferred.

« distinctive » Relativement à une marque de commerce, celle qui distingue véritablement les marchandises ou services en liaison avec lesquels elle est employée par son propriétaire, des marchandises ou services d'autres propriétaires, ou qui est adaptée à les distinguer ainsi.

...

« emploi » ou « usage » À l'égard d'une marque de commerce, tout emploi qui, selon l'article 4, est réputé un emploi en liaison avec des marchandises ou services.

...

Quand une marque de commerce est réputée employée

4. (1) Une marque de commerce est réputée employée en liaison avec des marchandises si, lors du transfert de la propriété ou de la possession de ces marchandises, dans la pratique normale du commerce, elle est apposée sur les marchandises mêmes ou sur les colis dans lesquels ces marchandises sont distribuées, ou si elle est, de toute autre manière, liée aux marchandises à tel point qu'avis de liaison est alors donné à la personne à qui la propriété ou possession est transférée.

[22]       In support of its submissions that BOOSTER is not distinctive of the products marketed by Luxo, Patou argues that BOOSTER does not distinguish Luxo's wares from those of others because its name does not appear on the label of the products associated with the mark. The resulting public perception is that Luxo is not the source of the goods associated with the trade-mark BOOSTER but a mere distributor of those wares. Any benefit or good will arising from the use of the mark has, therefore, accrued to the benefit of The Canadian Booster Company, Limited and not to its successor in title Luxo. Accordingly, Patou argues, the trade-mark does not distinguish the wares sold by Luxo within the meaning of "distinctive" set out in section 2 of the Trade-marks Act.

[23]       Patou referred to several cases in which a trade-mark was held to be invalid after it was assigned by the original registrant to a subsidiary or distributor. In Wilkinson Sword (Canada) Ltd. v. Juda,^[9] a trade-mark was expunged where the foreign manufacturer assigned its rights to the Canadian registration of its trade-mark to its wholly owned Canadian subsidiary. The Exchequer Court found that because the assignor continued selling its wares to a different Canadian importer the mark was not distinctive of the wares of the assignee.    Similarly, in Breck's Sporting Goods Co. v. Magder,^[10] products associated with an identical trade-mark were available from more than one source and the mark was found not to be distinctive of the registered owner's wares.

[24]       In this case, Luxo holds its rights to BOOSTER as a result of a series of assignments originating in 1974 when The Canadian Booster Company, Limited, a corporate entity that ceased to exist in 1976, assigned the mark to one of Luxo's predecessors in title.    The public cannot be misled into thinking that the product it is purchasing today originates in a company that was dissolved twenty-two years ago.

[25]             Patou argues forcefully that Luxo's name appears on none of its labels. From this, Patou urges that the trade-mark BOOSTER is distinctive of the wares of The Canadian Booster Company, Limited and not those of Luxo. The labels attached to BOOSTER products include this information:

The Canadian Booster Company

Toronto, Canada M5G 1C3

Made in Canada

[26]             Firstly, there is nothing in the definition of "distinctive", or in subsection 4(1), that requires the registered owner of a trade-mark to identify itself on the label of the products with which it associates its trade-mark. It is sufficient that the registered owner establish that its trade-mark is identified on, and associated only with, its wares at the time of the transfer to the customer. There is no evidence in this case of a second source of Booster products.

[27]             Secondly, Luxo's use of "The Canadian Booster Company" reflects Luxo's own registration of that trade name in December 1995.^[11] The postal code used on the labels of BOOSTER products includes the location of Luxo's premises. This information accurately represents, upon verification of the appropriate trade name register if necessary, the current ownership of the trade-mark. Patou has proffered no evidence of public deception or confusion arising from the similarity between Luxo's registered trading style and the name of a company that has not existed for over two decades.

[28]       The facts of this case are also distinguishable from those found in Heintzmann v. 751056 Ontario Limited,^[12] where the assignee sold foreign-made pianos marked with the Heintzmann name and of an apparently inferior quality.    Justice Reed found that: "Not only were the efforts to notify the public virtually non-existent, there was clearly a deliberate attempt by the respondents to camouflage the fact that a change of source had occurred." I have not understood the relevance of Heintzmann to this case. There is no evidence of any difference in the quality between the products marketed by Luxo and those sold by the original registrant; nor is there evidence of other entities marketing products under the same trade-mark in the marketplace.

[29]       Patou has also failed to establish that Luxo is perceived by consumers as a mere distributor of the products of The Canadian Booster Company, Limited. Again, this corporate entity has not existed for over twenty years. The affidavit of Patou's investigator suggesting that [TRANSLATION] "the 'Booster' or 'Canadian Booster' products appear to be manufactured by Canadian Booster Company" can only reflect an uninformed perusal of Luxo's product labels and nothing more.    The evidence discloses no other source for Luxo's products. There is no evidence of consumer deception or of the existence of a multiplicity of sources.

[30]       Even if the respondent were a mere distributor, the trade-mark BOOSTER is registrable by it as long as it is distinctive of its wares.^[13] Again, Patou relies on case law in which the facts do not resemble those in this proceeding. In Royal Doulton Tableware Ltd. v. Cassidy's Ltée,^[14] a United Kingdom manufacturer of chinaware obtained the expungement of the registration of its mark by its former Canadian distributor. The registration was made without the consent of the U.K. manufacturer. The distributor sold no other products, either its own or those of other manufacturers, under the same name. The mark was found to be distinctive of the wares of the manufacturer and not those of the distributor.    In this case, there is no evidence to suggest that there is any source, other than Luxo, of the products associated with the trade-mark BOOSTER. The original registrant ceased to exist in 1976 after validly assigning its mark to a third party in 1974. Luxo, is the sole entity benefiting from the use of the BOOSTER trade-mark.

[31]       In summary, Patou has not established that the mark BOOSTER is distinctive of the wares of an entity other than Luxo. The evidence has not persuaded me that BOOSTER is not distinctive of Luxo's wares.

Has the trade-mark BOOSTER been abandoned through non-use?

[32]       Abandonment is a question of fact to be determined according to the circumstances of each case. The party asserting abandonment must prove both actual non-use of the mark and an intent, on the part of the registered owner, to abandon the mark.^[15] The jurisprudence recognizes that proof of non-use may be made where a trade-mark owner's use of its mark deviates from the registered form of the mark.^[16] In this case, Patou argues that Luxo and its predecessors in title have abandoned their mark through the continued use of the trade-mark BOOSTER with the adjective "Canadian" and with what appears to be a stylized tiger-head graphic. Patou claims that this style of usage has resulted in the creation of a composite mark, namely, CANADIAN BOOSTER and Design.

[33]       There is no graphic associated with the trade-mark BOOSTER as registered. The labels show that Luxo frequently, but not consistently, uses BOOSTER in combination with the word "Canadian" and with a graphic representation. Even so, BOOSTER is the dominant word on the labels. It is printed across the label in a stylized font that is significantly larger than any other word or graphic on the label. The word "Canadian" is generally found above the word BOOSTER in a much smaller font. The tiger's head appears in the upper area of the label. Two different depictions of the tiger head are found on the labels. One version is more realistic and is larger in size while the other is smaller and more stylized.

[34]       Patou relies on the decision of the Federal Court of Appeal in Registrar of Trade Marks v. CII Honeywell Bull^[17] to support its submissions. In that case, the respondent owned three registered trade-marks: CII, HONEYWELL and BULL. The Court of Appeal concluded that the use of CII HONEYWELL BULL did not establish "use" of the individual mark BULL but formed a new, composite trade-mark. In the words of Justice Pratte:

The real and only question is whether, by identifying its goods as it did, CII made use of its trade mark "Bull". That question must be answered in the negative unless the mark was used in such a way that the mark did not lose its identity and remained recognizable in spite of the differences between the form in which it was registered and the form in which it was used. The practical test to be applied in order to resolve a case of this nature is to compare the trade mark as it is registered with the trade mark as it is used and determine whether the differences between these two marks are so unimportant than an unaware purchaser would be likely to infer that both, in spite of their differences, identify goods having the same origin. [Emphasis added.]^[18]

[35]       In Standard Coil Products (Canada) Ltd. v. Standard Radio Corp. and Registrar of Trade Marks,^[19] it was held that a registrant's consistent use of the trade-mark STANDARD in combination with the word "tuner" constituted "use" within the meaning of the Act. In the words of Cattanach J.: "[t]he dominant word is 'standard' both in its visual and phonetic sense and no person would be led to believe that it is merely an adjectival use of the word to modify "tuner".^[20]    

[36]       Finally, in Promafil Canada Ltée v. Munsingwear Inc.,^[21]MacGuigan J.A. observed that Canadian trade-mark law "emphasizes the maintenance of identity and recognizability and the preservation of dominant features" of a trade-mark. In my view, BOOSTER is the dominant image communicated by Luxo's labels. The addition of "Canadian" and a tiger-head design to the label is minor to such an extent that "an unaware purchaser would be likely to infer that both, in spite of their differences, identify goods having the same origin".^[22] Patou raised the same issue in its section 45 proceeding. The senior hearing officer also concluded that "... BOOSTER clearly stands out and would be perceived as use of the trade-mark BOOSTER per se".^[23] In my opinion, the public would perceive the mark BOOSTER as being used despite the addition of other words or graphics to the label. Patou has thus failed to demonstrate that, at the material date, the trade-mark BOOSTER had lost its identity through association either with the word "Canadian" or with the tiger-head graphic. Accordingly, Patou has not established that Luxo has abandoned its trade-mark through non-use, or ever intended to do so.

Does this Court have jurisdiction to limit Luxo's use of its trade-mark BOOSTER to "the hair salon market" by amending the statement of wares associated with the mark?

[37]       This issue arises only if I find, as I have, that Patou's application to have Luxo's trade-mark BOOSTER struck from the register fails. If the mark is found to be validly registered Patou asks, in the alternative, that this Court exercise its jurisdiction under subsection 57(1) and amend the register by adding the words "for the hair salon market" to Luxo's description of the wares associated with BOOSTER.

[38]       Subsection 57(1) provides:

57. (1) The Federal Court has exclusive original jurisdiction, on the application of the Registrar or of any person interested, to order that any entry in the register be struck out or amended on the ground that at the date of the application the entry as it appears on the register does not accurately express or define the existing rights of the person appearing to be the registered owner of the mark.

57. (1) La Cour fédérale a une compétence initiale exclusive, sur demande du registraire ou de toute personne intéressée, pour ordonner qu'une inscription dans le registre soit biffée ou modifiée, parce que, à la date de cette demande, l'inscription figurant au registre n'exprime ou ne définit pas exactement les droits existants de la personne paraissant être le propriétaire inscrit de la marque.

[Emphasis added.]

[39]       This Court has a broad supervisory power over the register of trade-marks and may expunge or amend any entry on the register which ceases to "accurately express or define the existing rights" of the apparent owner. Dr. Fox states:

The court ... has power (1) to expunge an entry in its entirety; (2) to expunge part or parts of an entry; (3) to order the entry of a disclaimer as to a part of a mark; or (4) to vary its form whether the entry relates to a mark or to any other matter, as for example an assignment. The court thus has the power to amend the registration of a trade mark in any way it may see fit as, for example, by removing an objectionable part contained in it.^[24] [References omitted.]

[40]       It is acknowledged that rights in a trade-mark arise according to its use.^[25] With this principle in mind, Patou requests that this Court amend the statement of wares associated with BOOSTER to reflect Luxo's actual use of its trade-mark. Specifically, Patou seeks a limitation of Luxo's use of BOOSTER to the "hair salon market" on the premise that Luxo has sold its BOOSTER products only in that particular market.

[41]       Moreover, Patou argues that aside from giving Luxo greater rights than it is entitled to, the over-broad statement of wares hinders the free flow of commerce and is detrimental to the public interest. To be fair, however, Luxo's existing statement of wares also prevents Patou from registering its own trade-mark and exposes Patou to an action for infringement under section 20 of the Trade-marks Act.

[42]       According to section 19 of the Trade-marks Act, the owner of the trade-mark has the exclusive right to the use throughout Canada of the trade-mark in respect of those wares or services. In my view, by limiting the use of Luxo's trade-mark in the manner sought by Patou, the Court would be fettering Luxo's rights in a way not contemplated by sections 19 and 57 of the Act. Patou's reliance on the Supreme Court of Canada decision in Home Juice Company v. Orange Maison Ltée^[26] only serves to reinforce my view in this regard. In that case, the Supreme Court restricted the use of a mark to a specific territorial area within Canada after it was found to be invalid. The amendment was based on subsection 32(2) of the Act, pursuant to which the registration of an otherwise invalid, descriptive mark, can be maintained if it is restricted to the "defined territorial area in Canada in which the trade-mark is shown to have become distinctive". There is no other provision in the Act which enables this Court to amend the register pursuant to subsection 57(1) in a manner which would restrict Luxo's existing rights as set out in section 19. In my opinion, the power to amend the register as set out in section 57(1) is only to be exercised where a trade-mark is otherwise open to expungement. The ability to amend the register in this way allows the Court to save an otherwise invalid mark and not to restrict the existing rights of the registered owner of a valid mark.

[43]       In Mr. Submarine Ltd. v. Amandista Investments Ltd.^[27] the Court of Appeal confirmed the rights of the registered owner of a trade-mark throughout Canada, even in regions where those rights had yet to be used:

... it should be noted that the appellant's right to the exclusive use of MR. SUBMARINE is not confined to those parts of Canada in which the appellant and its licensees have carried on business but extends throughout Canada. ... Nor is the appellant's exclusive right confined to the sale of sandwiches by the methods it now employs or has employed in the past. ... Whether the respondent's trade marks or trade names are confusing with the appellant's registered trade mark must accordingly be considered not only having regard to the appellant's present business in the area of the respondent's operations but having regard as well as to whether confusion would be likely if the appellant were to operate in that area in any way open to it using its trade mark in association with sandwiches ...^[28] [Emphasis added.]

As I understand this statement of the Court of Appeal, the registered owner's exclusive right to the use of its trade-mark throughout Canada is not limited by the marketing methods employed, any more than it is limited geographically.

[44]       The owner of the trade-mark has the exclusive right to its use, in association with the designated wares, throughout Canada. There is no more reason to limit the use of that right to certain market segments than to geographic regions. In Eminence SA v.Registrar of Trade Marks,^[29] my colleague Justice Dubé provided the same overall market protection to Fabergé's trade-mark EMINENCE when he stated:

Even if Fabergé does not sell its products in the same places as appellant, it is legally entitled to do so. It matters little that at the present time Fabergé's wares are sold in hairdressing salons rather than in drug stores. [Emphasis added.]^[30]

Although he was considering the likelihood of confusion and not section 19 specifically, his conclusion can readily be applied to the facts of this case.    Here, the affidavit of the vice-president of Luxo suggests that the company may extend its presence beyond the hair salon and barber shop market to the drug store and mass merchandising sectors.^[31]

[45]       I have serious doubts that subsection 57(1) contemplates the exercise of this Court's jurisdiction where "the existing rights" of the register owner of the trade-mark are no longer in issue. In any event, the circumstances of this case do not warrant the amendment sought by Patou to limit Luxo's rights to certain markets.

CONCLUSION

[46]       This application for expungement is dismissed. The applicant has failed to establish that the trade-mark BOOSTER, registered to Luxo Laboratories Limited, is invalid pursuant to paragraphs 18(1)(b) or 18(1)(c) of the Trade-marks Act. Similarly, the circumstances of this case do not warrant an amendment to the register concerning this trade-mark, pursuant to subsection 57(1). Costs will be to the respondent.

                                                                                                                                                      

                                                                                                   Judge

Ottawa, Ontario

December 30, 1998

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO:                   T-713-97

STYLE OF CAUSE :                JEAN PATOU INC. V. LUXO LABORATORIES LIMITED

PLACE OF HEARING:            OTTAWA, ONTARIO

DATE OF HEARING :             OCTOBER 19 AND 20, 1998

REASONS OF ORDER OF JUSTICE LUTFY

DATED:                                    DECEMBER30, 1998

APPEARANCES:

BRUNO BARRETTE                REPRESENTING THE APPLICANT

KENNETH McKAY             REPRESENTING THE RESPONDENT

SOLICITOR OF RECORD

BOUILLETTE,

CHARPENTIER, FORTIN                            FOR THE APPLICANT

MONTRÉAL, QUÉBÉC

SIM, HUGHES, ASHTON

& McKAY                                                 FOR THE RESPONDENT

TORONTO, ONTARIO