Aircraft Technical Publishers v. ATP Aero Training Products Inc., (1998) 150 F.T.R. 230 (TD)

• Court: Federal Court (Canada)
• Case Date: July 15, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1998), 150 F.T.R. 230 (TD)

Aircraft Tech. Publishers v. ATP Aero (1998), 150 F.T.R. 230 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. AU.031

In The Matter Of the Trade-marks Act, R.S.C. 1985, c. T-13;

And In The Matter Of the Trademark Registration No. 370,805 for ATP;

Aircraft Technical Publishers (applicant) v. ATP Aero Training Products Inc. (respondent)

(T-1458-95)

Indexed As: Aircraft Technical Publishers v. ATP Aero Training Products Inc.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

July 15, 1998.

Summary:

In 1995, the applicant commenced proceedings to strike out the respondent's trademark ATP. The respondent filed a reply in 1995, but no affidavit material. Since 1995, the parties had tried to negotiate a settlement. No settlement was reached and the matter was ready to be heard. The respondent brought a motion seeking to file the affidavit of its president (Burke) and to cross-examine the applicant's Caroline Daniels on her affidavit filed in 1995.

A Prothonotary of the Federal Court of Canada, Trial Division, granted the respondent leave to file the Burke affidavit. Under Federal Court Rule 308, the respondent could cross-examine Daniels on her affidavit as a right. Costs of the motion and the cross-examination were awarded to the applicant.

Practice - Topic 3604.7

Evidence - Affidavits - General - Time for filing - In 1995, the applicant commenced proceedings to strike out the respondent's trademark ATP - The respondent filed a reply in 1995, but no affidavit material - Since 1995, the parties had tried to negotiate a settlement - No settlement was reached and the matter was ready to be heard - The respondent now sought to file the affidavit of its president (three years late) - A Prothonotary of the Federal Court of Canada, Trial Division, granted the respondent leave to file the affidavit - The delay was explained and was to some degree mutual - The affidavit material was fairly critical to the respondent and was likely relevant, admissible and potentially useful to the court - Any prejudice to the applicant could be compensated for in costs - See paragraphs 2 to 19.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination of deponent - The applicant commenced proceedings in 1995 to strike out the respondent's trademark ATP - The respondent filed a reply in 1995, but no affidavit material - The respondent now sought to file affidavit material and to cross-examine the applicant's Caroline Daniels on her affidavit - A Prothonotary of the Federal Court of Canada, Trial Division, held that while Federal Court Rule 308 allowed cross-examination of Daniels as a right, it did not excuse the respondent's failure to move with diligence to cross-examine Daniels in 1995 when the affidavit and recollections were fresh - That prejudice to the applicant could be rectified by an award of costs, including costs for time spent by counsel to prepare Daniels and the cost of cross-examination itself, which could only be greater at this point - See paragraph 20.

Trademarks, Names and Designs - Topic 4407

Trademarks - Practice - Evidence - Affidavits - [See Practice - Topic 3604.7 ].

Cases Noticed:

Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) et al. (1994), 77 F.T.R. 218 (T.D.), refd to. [para. 5].

Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 37 F.T.R. 199; 32 C.P.R.(3d) 240 (F.C.T.D.), refd to. [para. 6].

Bio-Generation Laboratories Inc. v. Pantron I Corp. (1991), 48 F.T.R. 269 (T.D.), refd to. [para. 7].

DRG Inc. v. Datafile Ltd. and Registrar of Copyrights (1987), 14 F.T.R. 219 (T.D.), refd to. [para. 8].

Keramchemie GmbH v. Keramchemie (Canada) Ltd. (1994), 56 C.P.R.(3d) 454 (F.C.T.D.), refd to. [para. 9].

Morris (Phillip) Inc. v. Imperial Tobacco Ltd. (1985), 7 C.P.R.(3d) 254 (F.C.T.D.), refd to. [para. 11].

Oshawa Group Ltd. v. Registrar of Trademarks, [1981] 2 F.C. 18 (T.D.), refd to. [para. 13].

Counsel:

Gene Fraser, for the respondent;

Susan Beaubien, for the applicant.

Solicitors of Record:

Gene Fraser, Burke Tomchenko, Coquitlam, British Columbia, for the respondent;

Susan Beaubien, Shapiro, Cohen, Andrews, Finlayson, Ottawa, Ontario, for the applicant.

This motion was heard at Vancouver, British Columbia, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on July 15, 1997.