Trademark Opposition Board Decisions

SECTION 45 PROCEEDINGS
TRADE-MARK: VIDEO SHACK
REGISTRATION NO_: 337,883

On March 9, 1992, at the request of Cadshack Ltd. represented by Robic, the Registrar
forwarded a Section 45 notice to Tandy Corporation, the registered owner of the above-

referenced trade-mark registration.

The trade-mark VIDEO SHACK is registered for the following services: retail store
services in the field of television tape cassette.

In response to the Registrar's notice. the registrant furnished the affidavits of J.
Michael Wood and David Beckerman. Each party filed a written submission and was
represented at an oral hearing.

The Wood affidavit makes reference to four different trade-marks namely THE SHACK.

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SHACK. LE SHACK and VIDEO SHACK. Exhibits A-I to A-3 and B-1 to B-4 are identified as

front covers and portions of catalogues, flyers and inserts for the years 1988 to 1991
relating to the advertising for the four trade-marks.

Mr. Wood has not clearly alleged use of the trade-mark VIDEO SHACK in Canada in
association with retail store services in the field of television tape cassette within
the two years immediately preceding the date of the notice. Of the exhibits, only

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exhibits A-I and A-2 show the trade-mark VIDEO SHACK, but in my view, they are

irrelevant in that they bear dates outside the relevant period. Furthermore, the use
of the trade-mark VIDEO SHACK therein does not appear to be in association with services
in the field of television tape cassettes.

Concerning the Beckerman affidavit, it refers to several trade-marks. i.e. RADIO SHACK,
THE SHACK, SHACK and VIDEO SHACK. In paragraph 3, Mr. Beckerman refers to use of such
trade-marks in United States and Canada in respect of Ha wide assortment of consumer
electronic services and wares relating to electrical and ... including computer hardware
and software and audio and video tapes and televisions. and parts and accessories
therefore, as well as retail store services specializing in same". In paragraph 4, he
submits annual Canadian sales figures of the wares and services in association with the
aforesaid RADIO SHACK. THE SHACK, SHACK and VIDEO SHACK marks, for or involving SHACK
as a distinctive and predominant feature, for the fiscal years 1981 through 1991.

There is no clear allegation that the trade-mark VIDEO SHACK was in use in Canada in

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association with the services "retail store services in the field of television tape
cassettes" during the relevant period. Concerning the sales figures, the affiant has
not provided a breakdown per trade-mark and per services or wares. Consequently, it
is impossible to determine what portion of the sales figures, if any, is in connection
with the trade-mark VIDEO SHACK for the particular services listed in the registration.
Consequently, I have not given any weight to these figures.

Concerning advertising expenditures, Mr. Beckerman states the following at paragraph
5:

5. THAT my Company has spent approximately $642,394,005 in
advertising in the U.S.A. for fiscal years 1990-1992. More
specifically we have spent approximately $8,975,772 in advertising
in U.S.A. and Canada border town markets for the same period and

that approximately $887,008.61 in products have been purchased from
Radio Shack retail stores and its Video Shack, The Shack and Shack
departments by Canadian customers from May, 1990 through May 19,

1992.

In my view, the expression "Canada border town markets" is ambiguous and Mr. Beckerman
has not provided any further details.

The same ambiguous statement has been made concerning the catalogues submitted as
exhibits. In my view, although the catalogues bearing dates within the relevant period
show the trade-mark VIDEO SHACK as a service trade-mark being displayed in the field
of te1evision tape cassette, there is no clear evidence that the catalogues in question
have circulated in Canada or were distributed in Canada and that the services advertised
under the trade-mark were being offered or performed in Canada. Consequently, there
is no evidence of the trade-mark having been used or displayed in the advertising or
performance of the services in Canada during the relevant period.

Based on the evidence filed, I cannot conclude that the trade-mark VIDEO SHACK was being
used in Canada during the relevant period in association with retail store services in
the field of television tape cassettes. Accordingly, I conclude that the trade-mark
registration ought to be expunged.

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Registration No. 337,883 will be expunged in compliance with the provisions of Section
45(5) of the Trade-marks Act.

DATED AT HULL, QUEBEC, THIS 31^st  DAY OF    1995.

D. Savard

Senior Hearing Officer