Ridout & Maybee LLP v. HJ Heinz Company Australia Ltd., 2014 FC 442

This is a section 56 appeal from 2013 TMOB 49, wherein the Registrar of Trade-marks maintained the respondent’s trade-mark registration pursuant to section 45 of the Trade- marks Act. Section 45 requires the registered owner of a mark to show that the mark has been used in Canada in association with each of the wares and services specified in the registration at any time within the three year period immediately preceding the date of the notice. The Respondent’s mark, TMA 650,968 OX & PALM, is registered for use in association with “Meat and processed meats namely, corned meat and tinned meat ”.

On the facts of the case, the Court agreed that although an order for trade-marked goods was placed during the relevant three-year period, the goods were not received until three days after  the relevant period. Nevertheless, the Court found that use of the mark occurred when the order was placed, maintaining the registration of the mark.This was based on a purposive interpretation of section 45, which is a summary proceeding intended to remove deadwood from the register. The Court decided that not removing the mark over just a few days difference and not following the strict interpretation of “use in Canada” met the purpose of section 45.