TRADUCTION/TRANSLATION
IN THE MATTER OF THE OPPOSITIONS OF Rona Inc to applications for registration No. 884106 and 885948 for the trade-marks LA COMPÉTITION RIT JAUNE and WOW! C’EST JAUNE ET C’EST BEAUCOUP MOINS CHER! filed by Matériaux à bas prix Ltée.
I Proceedings
Matériaux à bas prix Ltée (the “Applicant”) filed an application on July 10, 1998, for the registration of the trade-mark LA COMPÉTITION RIT JAUNE (“Mark 1”), on the basis that it had been used since June 6, 1998, in association with the services of operating a business for the wholesale distribution and retail sales of construction materials (the “Services”). The application for registration was published on March 17, 1999, in the Trade-marks Journal.
On July 29, 1998, the Applicant also filed an application for registration of the trade-mark WOW! C’EST JAUNE ET C’EST BEAUCOUP MOINS CHER! (“Mark 2”; Mark 1 and Mark 2 will be collectively referred to as the “Marks”) on the basis that they had been used since July 19, 1998, in association with the Services. The application for registration was also published on March 17, 1999, in the Trade-marks Journal.
On May 3, 1999, Rona Inc. (“the Opponent”) filed in the case of Mark 1, and on May 8, 1999 in the case of Mark 2, statements of opposition raising the same grounds of opposition, which may be summarized as follows:
(1) The application for registration does not meet the requirements of section 30 of the Trade-marks Act (“the Act”) in that:
(a) the Applicant did not use its Services as claimed in association with the Marks;
(b) alternatively or collectively, the Applicant abandoned all or part of the Marks;
(c) the applicant falsely claimed to be convinced that it has the right to use the Marks and Canada in light of what is stated herein;
(2) Given the provisions of section 16 of the Act, the Applicant is not the person who is entitled to register the Marks because:
(a) The Marks were confusing with the Opponent’s trade-mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT previously used or displayed in Canada in association with its products and its services relating to the operation and management of commercial undertakings for the sale of articles and accessories for gardening, articles and accessories for yards, horticultural products, articles and accessories for plumbing, articles and accessories for electricity and lighting, hardware, articles and accessories for ironwork, furniture, paints, varnishes and solvents and painting supplies, articles and accessories for decoration, materials and accessories for building and renovation, home appliances and housewares, small and large hand tools and electrical tools, security systems, articles and accessories for pools, articles and accessories for sheet-metal work, articles and accessories for heating, aid conditioning and ventilation, locksmith’s articles and accessories, electrical and electronic articles and accessories, articles and accessories for Christmas decoration, sporting goods, recreational articles, fishing and hunting gear, toys, articles and accessories for babies, documentation and videos on building and renovation, articles and accessories for landscaping, articles and accessories for animals, articles and accessories for cars and trucks, sale and installation of articles and accessories for gardening, articles and accessories for yards, horticultural products, articles and accessories for plumbing, articles and accessories for electricity and lighting, hardware, articles and accessories for ironwork, furniture, paints, varnishes and painting supplies, articles and accessories for decoration, materials and accessories for building and renovation, home appliances and housewares, small and large hand tools and electrical tools, security systems, articles and accessories for pools, articles and accessories for sheet-metal work, articles and accessories for heating, air conditioning and ventilation, locksmith’s articles and accessories, electrical and electronic articles and accessories, articles and accessories for Christmas decoration, sporting goods, recreational articles, fishing and hunting gear, articles and accessories for landscaping, articles and accessories for animals, articles and accessories for cars and trucks; consulting and advisory services relating to hardware, construction, renovation, decoration and landscaping; tool rental service. (“Opponent’s Services”)
(b) The applications for registration herein opposed do not comply with the provisions of section 30 of the Act and the Marks are not used but are planned or abandoned, all contrary to the provisions of the introduction to subsection 16(1) of the Act;
(3) Given the provisions of section 2 and paragraph 38(2)(d) of the Act, the Marks are not distinctive with respect to the Services, cannot be distinctive and are not adapted so to distinguish them:
(a) primarily because of what is stated herein concerning the adoption, use and display of the Opponent’s mark;
(b) as a result of their transfer, it substituted the rights of two or more persons to use the Marks and these rights were exercised by the said persons concurrently, contrary to the provisions of section 48 of the Act;
(c) the Applicant permitted third parties to use the Marks in Canada -- and those third parties actually used them – outside the framework of the legislative provisions governing the use of a mark under licence, contrary to the provisions of section 50 of the Act.
On June 23, 1999, the Applicant filed a counter statement of opposition in each of the cases, in which it essentially denied the grounds of opposition set out above and added that, with respect to the ground of opposition based on subsection 16(1) of the Act, the Opponent had failed to indicate a date of first use that was prior to the date of first use alleged in the application for registration herein opposed. This earlier date of use will moreover be disclosed in the Opponent’s evidence set out below and that will remedy this failure.
The parties filed written arguments and were represented at the hearing.
II Opponent’s evidence
The Opponent filed an affidavit of Claude Bernier in each of the cases. He was the Opponent’s Vice-President, Marketing and Development. It operates and runs an organization that purchases and distributes products and services for the benefit of independent dealers of which the Opponent is the principal shareholder. The RONA L’ENTREPÔT banner is used to refer to superstores where consumers can find materials and accessories for construction and renovation.
The deponent alleged that since its first store was opened under the RONA L’ENTREPÔT banner in June 1994, the Opponent had always stressed the colour yellow in its interior and exterior decoration in order to make this a distinctive feature. A discussion within this case related to this statement. The Applicant claimed that it was the colour orange that the Opponent used. This discussion served no purpose because it was the slogans rather than a colour that are the subject of these applications for registration opposed herein. Furthermore, the Opponent did not base its opposition on any rights to the colour yellow. I shall not therefore consider these allegations since I find them irrelevant to these proceedings.
Mr. Bernier alleged that the Opponent embarked upon an extensive advertising campaign on March 23, 1998 to promote its services of selling and installing materials and accessories for building and renovation. It provided the amounts spent on advertising costs to promote the mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT, ranging from seven to nine million dollars over the period from 1998 to 2000. Copies of advertisements published in newspapers such as La Presse, the Journal de Montréal, Le Soleil and le Droit were also filed, as were copies of flyers. Audiocassettes and videocassettes containing copies of the commercials broadcast on various television and radio stations such as TVA, Radio-Canada, TQS, CKMF, CITÉ and CKOI were also included in the record and there we see or hear the mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT. Because of this evidence, the Opponent alleged that its trade-mark had immediately become known in Quebec so that the said mark and the word “jaune” [yellow] are systematically associated in the minds of consumers with the products and services offered by the Opponent.
Mr. Bernier alleged that the parties were competitors and filed a copy of a flyer of the Applicant to show that it emphasized the colour yellow.
Mr. Bernier was cross-examined. He confirmed that in the spring of 1998 the Opponent redid all the identification on its various banners. He admitted that some advertisements did not contain the slogan “SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT”, such as the advertising in the English language and some advertisements concerning the opening of new stores. To a certain extent, this contention, by the Applicant’s own admission, contradicted the contents of paragraph 21 of its affidavit, where it alleged that all RONA L’ENTREPÔT’s advertising contained this slogan. This admission somewhat mitigated the size of the amounts spent on advertising to promote the Opponent’s Services in association with this trade-mark.
He identified certain tool manufacturers who apparently use the colour yellow in their advertising or the packaging of their products. He also stated that he was not aware of any cases of confusion. Finally, he asserted that he was aware of the use of the Marks by the Applicant, which had the effect, in the Applicant’s view, of contradicting ground of opposition 1(a) set out above.
III Applicant’s evidence
The Applicant filed the affidavit of Christian Richer.
Mr. Richer was the President of the Applicant and explained that it had been involved in Quebec since 1985 and in Ontario since 1997 in the field of sales of building and renovation materials. After consulting an advertising firm in February 1998, the Applicant adopted a logo in which we find the colour yellow.
Mr. Richer filed in support of his affidavit several samples of circulars distributed between June 1998 and November 2000 in which the Marks appear, copies of posters on which we find the Marks, a photograph of an outdoor sign on which the mark WOW! C’EST JAUNE ET C’EST BEAUCOUP MOINS CHER! appears, copies of various advertisements published in the Journal de Montréal between July 1998 and August 2000, and in other daily newspapers such as La Presse, la Tribune and le Droit that include the mark WOW! C’EST JAUNE ET C’EST BEAUCOUP MOINS CHER! The amounts spent on advertising to promote the Services in association with the Marks during the period from June 1998 to November 2000 totalled almost $935,000.
Mr. Richer asserted that the services offered by the parties differed in that:
- the Applicant was active solely in the field of building and renovation, whereas the Opponent supplied hardware and horticultural products, household appliances and tools;
- most of the materials supplied by the Applicant were unfinished materials whereas the Opponent supplied very few unfinished materials;
- the Applicant had a uniform price policy for all its branches whereas the prices varied from one of the Opponent’s branches to another;
- the Applicant, unlike the Opponent, did not offer any lumber-cutting service or ceramics business or delivery;
- the surface of the premises operated by the Applicant was in the range of 5,000 to 10,000 sq. ft. whereas those of the Opponent were greater than 100,000 sq. ft.
Mr. Richer was also cross-examined. Since court proceedings were already under way between the parties, several questions related to those proceedings and were not at all relevant to these opposition proceedings. I accordingly sustain, with respect to this ground, all the objections expressed by the Applicant.
The Applicant admitted that it was referring to the Opponent when it mentioned “the competition” in its circulars. Furthermore, it now sold more high-grade materials than unfinished materials.
IV Applicable law
The relevant date in analysing the different grounds of opposition varies with the ground of opposition raised. Thus, for the grounds of opposition based on section 30 of the Act, the relevant date is that on which the application for registration was filed (July 10, 1998 for case 884106 and July 29, 1998 for case 885948) [see Dic Dac Holdings (Canada) Ltd v. Yao Tsai Co. (1999), 1 C.P.R. (4th) 263]. When the ground of opposition is based on subsection 16(1) of the Act, the date of the first use alleged in the application for registration (June 6, 1998 for case 884106 and July 19, 1998 for case 885948) is the relevant date as indicated in the said subsection. Finally, it is generally recognized that the date on which the statement of opposition was filed (May 3, 1999 for case 884106 and May 8, 1999 for case 885948) is the relevant date for an analysis of the ground of opposition based on the lack of distinctiveness in the Marks. [See Andres Wines Ltd. and E&J Gallo Winery (1975), 25 C.P.R. (2d) 126 (F.C.A.) at page 130, Park Avenue Furniture Corporation v. Wickes/Simmons Bedding Ltd. (1991), 37 C.P.R. (3d) 413 at page 424 (F.C.A), and Metro-Goldwyn-Meyer Inc v. Stargate Connections Inc., [2004] F.C. 118.]
In proceedings relating to an opposition to the registration of a trade-mark, the Opponent must submit sufficient evidence concerning the grounds of opposition that it raises so that it will be apparent that there are facts capable of supporting these grounds of opposition. The presence of these facts will require the Applicant to persuade the Registrar on a balance of probabilities that the grounds of opposition do not create obstacles to the registration of the Marks. [See Sunshine Biscuits Inc. v. Corporate Foods Ltd. (1982), 61 C.P.R. (2d) 53, Joseph Seagram & Sons Ltd. v. Seagram Real Estate Ltd. (1984), 3 C.P.R. (3d) 325 and John Labatt Ltd. v. Molson Companies Limited, (1990), 30 C.P.R. (3d) 293.]
V Analysis of the grounds of opposition
The Opponent did not discharge its initial onus of proof concerning grounds of opposition 1(b) and (c) and 3(b) and (c) set out above in both cases of opposition. They are accordingly dismissed. Concerning the second part of the second ground of opposition set out above, the introductory paragraph of section 16 of the Act does not in itself provide a legal basis for the ground of opposition based on failure to comply with the formalities set out in section 30 of the Act. I accordingly dismiss ground of opposition 2(b) set out above in both cases of opposition.
At the hearing, the Opponent raised an argument in law that was not included in its written submissions to support grounds of opposition 2(a) and 3(a). The Opponent alleged that the Applicant had made an admission that was contrary to its own interests in the opposition that it filed in the case of application for registration number 1005984 for the Opponent’s mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT, in which it alleged that the said mark caused confusion with the Marks. Thus, if I were to find that there was evidence of earlier use of this trade-mark, there would be an admission by the Applicant that its Marks caused confusion with the Opponent’s mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT. For this reason alone, the Opponent argues that the applications for registration of the Marks must be dismissed.
In support of its arguments, the Opponent referred, inter alia, to three decisions of the Registrar in which such an argument was accepted in order to dismiss an application for registration (General Foods v. Sunny Crunch Foods Ltd. (1987), 15 C.P.R. (3d) 380, Daniadown Quilts Ltd. v. Scandia Down Corp. (1990), 28 C.P.R. (3d) 179 and Lancôme Parfums et Beauté & Cie et al v. House of Devonshire Ltd (1991), 38 C.P.R. (3d) 432). In each of those decisions, the evidence of admissions against a party’s interests was filed in proper form in the record. In our case, only the application for registration of the trade-mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT was filed in the records. It is true that the hearing of these cases was joined with that of case 1005984 but that does not mean that the evidence and the pleadings included in the said record are automatically part of the evidence in cases 884106 and 885948. The contents of each of these three records are different. I am aware that the Opponent’s agent gave me, at the hearing of these cases, a photocopy of the statement of opposition filed by the Applicant in case 1005984 to establish its claims. The rules of evidence applying to cases of opposition are clear: sections 41 and 43 of the Trade-mark Regulations (1996) and section 54 of the Act provide that evidence is adduced by affidavit or by filing a copy that is certified true by the Registrar. Thus, I cannot admit in evidence in these cases a photocopy of the statement of opposition filed by the Applicant in case 1005984. In the absence of this evidence, I must reject this argument, no matter how attractive it is.
The Opponent referred to the flyer for June 1998, Exhibit CR-2, to show that the Applicant had not used Mark 1 as of the date of first use indicated in its application for registration, that is June 6, 1998, but rather the slogan LA COMPÉTITON RIT JAUNE COMPAREZ NOS PRIX! as illustrated below:
According to the Opponent, the evidence indicated rather that the Applicant began to use Mark 1 as of July 1998. Although the initial onus of proof is on the Opponent when the ground of opposition is based on the non-use of the mark as of the date of first use alleged in the application for registration, the Opponent may refer to the evidence included in the record by the Applicant to discharge this slight onus. [See Tune Masters v. Mr. P’s Mastertune Ignition Services Ltd. (1986), 10 C.P.R. (3d) 84 (T.M.O.B.), Hearst Communications Inc. v. Nesbitt Burns Corp. (2000), 7 C.P.R. (4th) 161 (T.M.O.B), Labatt Brewing Co. v. Molson Breweries, a Partnership (1996), 68 C.P.R. (3d) 216 (F.C.T.D.) and Williams Telecommunications Corp. v. William Tell Ltd. (1999), 4 C.P.R. (4th) 107 (T.M.O.B).] In this case, I must determine whether the use of the mark illustrated above constitutes use of Mark 1. The Honourable Pratte J. in Registrar of Trade Marks v. CII Honeywell Bull, [1985] 1 F.C. 406, at page 408, defined as follows the applicable test to determine whether use of a mark containing several changes could constitute use of the registered mark:
The problem to be resolved is not whether CII deceived the public as to the origin of its goods. It clearly did not. The real and only question is whether, by identifying its goods as it did, CII made use of its trade-mark BULL. That question must be answered in the negative unless the mark was used in such a way that the mark did not lose its identity and remained recognizable in spite of the differences between the form in which it was registered and the form in which it was used. The practical test to be applied in order to resolve a case of this nature is to compare the trade mark as it is registered with the trade mark as it is used and determine whether the differences between these two marks are so unimportant that an unaware purchaser would be likely to infer that both, in spite of their differences, identify goods having the same origin.
I do not consider the use of LA COMPÉTITION RIT JAUNE COMPAREZ NOS PRIX to constitute use of Mark 1. Indeed, the complete slogan is written in black inside the same geometric figure on a yellow ground. There is nothing to separate the two components of this slogan. Furthermore, the symbol “TM” is located at the end of the slogan and not after “LA COMPÉTITION RIT JAUNE”. Finally, there is no punctuation mark located at the end of the slogan to confirm that it consists of only one element.
Thus, the evidence in the record raises serious doubts concerning the use of Mark 1 in association with the Services as of June 6, 1998. The Applicant accordingly had to prove use of Mark 1 in association with the Services from the said date, which onus it was not able to discharge. In the circumstances, I sustain ground of opposition 1(a) set out above with respect to Mark 1 only because the Opponent did not discharge its initial onus with respect to Mark 2.
To decide the fate of grounds of opposition 2(a) and 3(a), I must determine on a balance of probabilities whether there is a possibility of confusion between Mark 2 and the trade-mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT. [See Telus Corporation v. Orange Communications Services Limited, 2005 F.C. 590, April 29, 2005 and Christian Dior, S.A. et Dion Neckwear Ltd [2002] 3 F.C. 405 (F.C.A.).]
In order to make this analysis, I must take into account all circumstances considered relevant including those set out in subsection 6(5) of the Act, namely (a) the inherent distinctiveness of the trade-marks or trade-names, and the extent to which they have become known; (b) the length of time the trade-marks or trade-names have been in use; (c) the nature of the wares, services or business; (d) the nature of the trade; and (e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them.
It is clearly established that the list of circumstances set out in subsection 6(5) of the Act is not complete and that it is not necessary to place the same importance on each of these tests. [See, for example, Clorox Co. v. Sears Canada Inc. (1992), 41 C.P.R. (3d) 483 (F.C.T.D.) and Gainers Inc. v. Marchildon (1996), 66 C.P.R. (3d) 308 (F.C.T.D.).] The Honourable Cattanach J. described the confusion test as follows in Canadian Schenley Distilleries Ltd. v. Canada’s Manitoba Distillery Ltd. (1975), 25 C.P.R. (2d) 1:
To determine whether two trade marks are confusing one with the other it is the persons who are likely to buy the wares who are to be considered, that is those persons who normally comprise the market, the ultimate consumer. That does not mean a rash, careless or unobservant purchaser on the one hand, nor on the other does it mean a person of higher education, one possessed of expert qualifications. It is the probability of the average person endowed with average intelligence acting with ordinary caution being deceived that is the criterion and to measure that probability of confusion the Registrar of Trade Marks or the Judge must assess the normal attitudes and reactions of such persons.
In considering the similarity of trade marks it has been held repeatedly that it is not the proper approach to set the marks side by side and to critically analyze them for points of similarities and differences, but rather to determine the matter in a general way as a question of first impression. I therefore propose to examine the two marks here in dispute not for the purpose of determining similarities and differences but rather to assess the attitude of the average reasonable purchaser of the wares as a matter of first impression.
Since I have already sustained the first ground of opposition in connection with Mark 1, I shall now analyse the relevant circumstances solely in relation to Mark 2.
(a) the inherent distinctiveness of the trade-marks or trade-names, and the extent to which they have become known;
Mark 2 has a certain degree of inherent distinctiveness when it is used in association with the Services. The same is true of the Opponent’s trade-mark. The presence of the word “RONA” also has the effect of enhancing the distinctiveness of the Opponent’s mark. The difference of a few days between the dates of first use of the marks in question cannot itself justify why one trade-mark is better known than another. However, although it was established that the sums spent on advertising by the Opponent were not limited solely to the mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT, we may assume that a large part of these sums was spent to promote the Services of the Opponent in association with, among other things, the mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT. In fact, the Applicant was not able to establish that only advertising in the English language and a few other flyers referring to the opening of new stores operated by the Opponent under the mark RONA L’ENTREPÔT did not contain any references to the said trade-mark. The size of the sums spent on advertising by the Opponent greatly exceeded those spent by the Applicant in association with Mark 2. I may accordingly conclude that the Opponent’s mark was better known, at least in Quebec, than Mark 2. [See Molson Breweries, a Partnership v. Moosehead Breweries Ltd. (1995), 64 C.P.R. (3d) 560.]
(b) the length of time the trade-marks or trade-names have been in use;
Although the Opponent’s mark was used prior to the date of first use of Mark 2, the difference can be measured in terms of days and thus this factor cannot have any decisive impact in this case.
(c) the nature of the wares, services or business;
(d) the nature of the trade;
There is an overlap between the Applicant’s Services in association with Mark 2 and the Opponent’s services of selling building and renovation materials in association with the mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT. Despite the differences identified by the Applicant concerning the nature of the parties’ businesses, they are not so great that they could be a decisive factor in the Applicant’s favour.
(e) degree of resemblance between the marks
In Beverly Bedding & Upholstery Co. v. Regal Bedding & Upholstery Ltd. (1980), 47 C.P.R. (2d) 145, aff’g. 60 C.P.R. (2d) 70, Cattanach J. stated the following:
Realistically appraised it is the degree of resemblance between the trade-marks in appearance, sound or in ideas suggested by them that is the most crucial factor, in most instances, and is the dominant factor and other factors play a subservient role in the over-all surrounding circumstances.
The marks must be analysed as a whole and not in terms of their component parts for the purpose of finding similarities or differences. The test remains that of an average consumer’s imperfect memory [Canadian Schenley Distilleries Ltd. v. Canada’s Manitoba Distillery Ltd. (1975), 25 C.P.R. (2d) 1].
After applying these principles, I conclude that the marks of the parties, when taken as a whole, have no resemblance, either phonetically except for the simple presence of the word “jaune”, or visually and in the ideas it suggests.
(f) other circumstances
As indicated earlier, the Opponent made much of the use of the colour yellow in the livery of its business and the advertising designed to promote its services. It argued that Mark 2 made no sense in the absence of the use of the colour yellow by the Opponent. What the Opponent was seeking was the equivalent of a monopoly on the colour “yellow” in association with its services. In my judgment, this was an indirect way to argue a ground of opposition that was not raised in the statement of opposition. If the Opponent wished to assert rights to the colour yellow in association with the Services, it merely had to include this ground in its statement of opposition. I cannot consider this argument because that would have the effect of allowing the Opponent to do indirectly what it could not do directly, that is to raise a ground of opposition that is not part of its statement of opposition. In any event, assuming that a consumer will associate the colour “yellow” with the Opponent when it is used in association with the services of selling building and renovation materials, I fail to see how an average consumer with an imperfect memory could believe that the Services offered in association with Mark 2 came from the Opponent. Mark 2 must be read as a whole and we must not focus solely on the word ”jaune”.
I accordingly reject ground of opposition 2(a) set out above because the Applicant discharged its onus of establishing on a balance of probabilities that Mark 2 does not cause confusion with the Opponent’s trade-mark used earlier in association with services of selling building and renovation materials. I base this finding primarily on the lack of any degree of resemblance between the mark WOW! C’EST JAUNE ET C’EST BEAUCOUP MOINS CHER! and the mark SI CE N’EST PAS JAUNE, CE N’EST PAS RONA L’ENTREPÔT.
I also reject ground 3(a) set out above because of the lack of any likelihood of confusion and thus the Applicant established on a balance of probabilities that Mark 2 was capable of distinguishing its Services from those of third parties, including those of the Opponent.
I should note that grounds of opposition 2(a) and 3(a) set out above would also have been rejected with respect to Mark 1, for the same reasons as have been given with respect to Mark 2.
VI Conclusion
By virtue of the powers delegated to me by the Registrar of Trade-marks under the provisions of subsection 63(3) of the Act, and in light of what has been stated above, I dismiss application for registration number 884106 for the trade-mark LA COMPÉTITION RIT JAUNE since I sustained ground of opposition 1(a).
With respect to application for registration number 885948 for the trade-mark WOW! C’EST JAUNE ET C’EST BEAUCOUP MOINS CHER!, I reject the opposition, in accordance with the provisions of subsection 38(8) of the Act.
DATED AT BOUCHERVILLE, QUEBEC, THIS MAY 25, 2005.
Jean Carrière
Member of the Trade-marks Opposition Board