SECTION 45 PROCEEDINGS
TRADE-MARK: KIRKO
REGISTRATION NO.: 118,209
On February 20, 2001, at the request of Messrs. Swabey Ogilvy Renault, the Registrar forwarded a Section 45 notice to The Hewitt Soap Company, Inc., the registered owner of the above-referenced trade-mark registration.
The trade-mark KIRKO is registered for use in association with the following wares: soap.
Section 45 of the Trade-marks Act requires the registered owner of the trade-mark to show whether the trade-mark has been used in Canada in association with each of the wares and/or services listed on the registration at any time within the three-year period immediately preceding the date of the notice, and if not, the date when it was last in use and the reason for the absence of use since that date.
In response to the notice, the affidavit of Gary R. Moorhead together with exhibits has been furnished. The requesting party alone filed a written argument. An oral hearing has not been requested in this case.
In his affidavit, Mr. Moorhead states that the registrant manufactures and sells soaps to distributors who then sell the soaps in the United States and in Canada. The distributors in turn export the soaps to purchasers within the United States and Canada. He indicates that the trade-mark is used in association with “bar soap”. As Exhibit A he provides photographs showing the trade-mark appearing on boxes of KIRKO soap in bar form. As Exhibit B he provides two price lists dated March 1, 1999 and March 2001 respectively showing that KIRKO soap was available for sale. He indicates that the price lists are distributed to customers in the United States and in Canada and to distributors and dealers. He specifies that KIRKO soap has been available for sale in Canada prior to February 20, 2001, and for at least the last three years. However, no sales of KIRKO soap has taken place in Canada within the last three years.
Having considered the evidence furnished it is clear that although the product was available for sale in Canada during the relevant period, there has been no sales in Canada.
As the evidence fails to show that a transfer of the property in or possession of the wares occurred within the relevant period, (Sections 4(1) and 45) and as there are no special circumstances excusing the absence of use during the relevant period, I have no alternative but to conclude that the trade-mark registration ought to be expunged.
Registration No. 118,209 will be expunged in compliance with the provisions of Section 45(5) of the Act.
DATED AT GATINEAU, QUEBEC, THIS 22ND DAY OF MAY 2003
D Savard
Senior Hearing Officer
Section 45 Division