SECTION 45 PROCEEDINGS
TRADE-MARK: SURVIVORS
REGISTRATION NO.: 436,677
On January 25, 2000 at the request of Borden Elliot Scott & Aylen, the Registrar forwarded a
Section 45 notice to Greb International and Company, Limited Partnership, who at the time was the registered owner of the above-referenced trade-mark registration.
The trade-mark SURVIVORS is registered for use in association with the following wares: socks and hosiery for men, women and children.
In response to the notice, the affidavit of Kevin Huckle together with exhibits has been furnished. The registrant alone filed a written argument. An oral hearing has not been requested in this case.
In his affidavit Mr. Huckle clearly alleges use of the trade-mark in association with the wares during at least the three-year period prior to the notice. He submits that Greb International has used the mark or seen to its use through its licensee, Iris Hosiery Inc. He specifies that the trade-mark has appeared on the wares themselves as well as on their packaging and labelling. For example, he indicates that the mark was used by appearing on the sock sleeves used to package and present the socks as appear from typical samples provided. With respect to sales of the wares, he indicates that Canadian sales totalled at least $375,000 and he provides a sampling of photocopies of invoices.
Having considered the evidence, I conclude that it shows use of the trade-mark SURVIVORS in association with the registered wares and during the relevant period. Although on the sampling of wares the word SURVIVORS is closely associated with the word KODIAK, the word “SURVIVORS” is used in a colour that differs from the colour used for the term “KODIAK”. Further, each word is followed by the ® symbol which would provide the message that SURVIVORS and KODIAK are two distinct trade-marks. In view of the evidence furnished, I am prepared to conclude that the public would probably perceive the trade-mark SURVIVORS as being used.
As the use shown complies with the requirements of the Trade-marks Act, I conclude that the trade-mark registration ought to be maintained.
Registration No. 436,677 will be maintained in compliance with the provisions of Section 45(5) of the Act.
DATED AT HULL, QUEBEC, THIS 26th DAY OF SEPTEMBER 2001.
D Savard
Senior Hearing Officer
Section 45 Division