See You In - Canadian Athletes Fund Corp. v. Canadian Olympic Committee, (2008) 378 N.R. 261 (FCA)

• Judge: Létourneau, Evans and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 08, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 378 N.R. 261 (FCA);2008 FCA 124

Cdn. Athletes Fund v. Cdn. Olympic Com. (2008), 378 N.R. 261 (FCA)

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Temp. Cite: [2008] N.R. TBEd. JL.027

See You In - Canadian Athletes Fund Corporation (appellant) v. Canadian Olympic Committee (respondent)

(A-246-07; 2008 FCA 124; 2008 CAF 124)

Indexed As: See You In - Canadian Athletes Fund Corp. v. Canadian Olympic Committee

Federal Court of Appeal

Létourneau, Evans and Pelletier, JJ.A.

April 8, 2008.

Summary:

The See You In - Canadian Athletes Fund Corp. (Fund) had used and filed trademark applications for the words "See You In Torino", "See You In Beijing" and "See You In Vancouver". Ten months later, the Canadian Olympic Committee (COC) requested that public notice be given under s. 9 of the Trade-marks Act for the identical words. The Registrar of Trademarks published notice of the official trademarks. The COC filed substantive evidence that the COC was a public authority, but no substantive evidence of the adoption and use of the official marks. The public notice precluded the Fund from registering the previously adopted and used marks. The Fund sought judicial review of the Registrar's decision to publish notice of COC's official mark.

The Federal Court, in a judgment reported (2007), 311 F.T.R. 245, allowed the application, and quashed the Registrar's decision to publish notice. The Registrar erred in finding adoption and use by the COC. The Fund, although it was successful on one ground and obtained the relief sought, appealed the court's decision to reject its application on another ground. The COC cross-appealed, submitting that the court erred in failing to find prior use.

The Federal Court of Appeal declined to deal with the Fund's appeal and dismissed the COC's cross-appeal.

Practice - Topic 9428

Appeals - Grounds of appeal - Objection to reasons for decision - A party sought judicial review of a Registrar's decision on two grounds - The party was successful on only one of the two grounds, but obtained the relief sought - The party appealed the dismissal of its application on the second ground - The Federal Court of Appeal declined to deal with the issue, stating that "a party who has obtained the relief it sought is not normally entitled to appeal against the judge's reasons. We see no basis for making an exception in this case, however useful to the appellant a ruling in its favour may possibly be in the future." - See paragraphs 7 to 8.

Trademarks, Names and Designs - Topic 4002

Trademarks - Prohibited marks - Marks adopted or used by public authority (official marks) - The See You In - Canadian Athletes Fund Corp. (Fund) had used and filed trademark applications for the words "See You In Torino", "See You In Beijing" and "See You In Vancouver" - Ten months later, the Canadian Olympic Committee (COC) requested that public notice be given under s. 9 of the Trade-marks Act for the identical words - The Registrar of Trademarks published notice of the official trademarks - The COC filed substantive evidence that the COC was a public authority, but only the unsworn statement of counsel that there had been adoption and use of the official marks - The public notice precluded the Fund from registering the previously   adopted   and   used   marks - The Fund sought judicial review of the Registrar's decision to publish notice of COC's official mark - The trial judge quashed the Registrar's decision to publish notice - The COC had to establish both adoption and use and that it was a public authority - Although the evidence supported the Registrar's finding that the COC was a public authority (significant degree of public control and COC existed for public benefit), there was no evidence upon which the Registrar could have been satisfied that the COC established adoption and use of the marks - Internal discussions, memoranda, etc., was insufficient to constitute adoption and use - Some public display was required - The Registrar's decision was neither correct nor reasonable - The Federal Court of Appeal dismissed the COC's cross-appeal, finding that the trial judge did not err in finding that the COC had no proved prior "use".

Counsel:

Terrance J. McManus, for the appellant/applicant;

Kenneth D. McKay, for the respondent.

Solicitors of Record:

Milton, Geller LLP, Ottawa, Ontario, for the appellant/applicant;

Sim, Lowman, Ashton & McKay, Toronto, Ontario, for the respondent.

This appeal and cross-appeal were heard on April 8, 2008, at Ottawa, Ontario, before Létourneau, Evans and Pelletier, JJ.A., of the Federal Court of Appeal.

On April 8, 2008, Evans, J.A., delivered the following  judgment orally for the Court.