SECTION 45 PROCEEDINGS
TRADE-MARK: BECHEROVKA
REGISTRATION NO.: 196,795
On April 2, 1993, at the request of Messrs. Marks & Clerk, the Registrar forwarded a Section 45 notice to Johann Becher oHG, Likorfabrik, the registered owner of the above-referenced trade-mark registration.
The trade-mark BECHEROVKA is registered for the wares "(1) Spirituous liquors. (2) Liqueurs".
In response to the Registrar's notice, the registrant furnished the affidavit of Peter Mielzynski, President of Peter Mielzynski Agencies Ltd., which company acts as agent in Canada for the spirits and liqueurs of the registrant. Both parties filed written submissions; there was no oral hearing.
The requesting party submits that the evidence filed clearly fails to meet the test of sufficiency of Section 45; it argues that Mr. Mielzynski cannot possess the personal knowledge required to attest to the normal course of trade for the wares of the registrant as he is neither an officer nor an employee of the registrant and as he has not attested to having full access to the relevant business records of the registrant; that there is very considerable ambiguity in the affidavit with regard to the identity of the trade-mark and that as no label has been submitted, it cannot be determined whether it is the trade-mark as registered that is being used.
In his affidavit, Mr. Mielzynski explains the role of his company as agent in Canada for the registrant's liqueur. He submits that in view of the Canadian legislation, the registrant's liqueur has to be imported by the Provincial Liquor Boards and that the liqueur imported from the registrant by the Provincial Liquor Boards is then sold to Canadian consumers through the agency of his company. Mr. Mielzynski states that the label affixed on each bottle of liqueur which was sold in Canada through his company links the trade-mark to Johann Becher oHG, Likorfabrik as the producer of the product and owner of the trade-mark. He describes transactions that have occurred within the two-year relevant period. Mr. Mielzynski has explained the role of his company with respect to the registrant's wares and I accept his evidence as admissible in this proceeding.
Mr. Mielzynski has stated that the trade-mark appears prominently on a label affixed to the bottle of the liqueur. The requesting party submits that in a few instances in the affidavit, reference is made to Johann Becher's Becherovka Liqueur, and it argues that it is impossible for the Registrar to determine on the basis of the words of the Mielzynski's affidavit alone exactly which trade-mark identified the liqueur sold in Canada, the words "Johann Becher's Becherovka" or the word "Becherovka".
As properly put by the requesting party, Mr. Mielzynski inexplicably has chosen not to supply in evidence an example of the label which he has stated is affixed to the bottle of the liqueur. Although the registrant has stated that the trade-mark appears prominently on the label, he has not provided details as to how the trade-mark appears thereon and based on the several references in the affidavit to "Johann Becher's Becherovka's liqueur" I am not convinced that the trade-mark BECHEROVKA appears by itself. For example, in paragraph 4 of the affidavit it is stated "... the JOHANN BECHER's BECHEROVKA liqueur imported from JOHANN BECHER..." In my view, the aforementioned phrasing in the affidavit strongly suggests that the words "Johann Becher's" might be used on the label in conjunction with the word "Becherovka". If it is the composite mark "Johann Becher's Becherovka" that appears on the label, I am of the view that use of such composite mark might not constitute use of the trade-mark BECHEROVKA (see Compagnie Internationale pour l'Informatique CII Honeywell Bull v. Herridge, Tolmie and Registrar of Trade-marks, 4 C.P.R.(3d) 523). I am therefore left in a state of doubt as to the trade-mark being used. It should have been a simple matter for Mr. Mielzynski to have submitted in evidence a sample of the label which he has stated appears on the bottles for the wares. However, he chose not to do so.
The registrant's agents in their written submissions submit that the use of the possessive form "Johann Becher's" in the expression Johann Becher's Becherovka refers to the registered owner since it has been clearly set out in paragraph 1 of the affidavit that for the purpose of the affidavit Johann Becher OHG, Likorfabrik is referred to as Johann Becher. However, I find I should not have to rely on speculation to reach this conclusion.
Consequently, in view of the ambiguity concerning the trade-mark being used, I cannot conclude that use of the trade-mark as registered has been shown.
Registration No. 196,795 will therefore be expunged in compliance with the provisions of Section 45(5) of the Trade-marks Act.
DATED AT HULL, QUEBEC, THIS 29th DAY OF November, 1994.
D. Savard
Senior Hearing Officer
Section 45 Division