SECTION 45 PROCEEDINGS
TRADE-MARK: CHAMPION & Design
REGISTRATION NO.: TMA 225,897
On July 13, 1994, at the request of Sterling & Affiliates, the Registrar forwarded a Section 45 notice to Guangzhou Light Industrial Products Import & Export (Group) International, the registered owner of the above-referenced trade-mark registration.
The trade-mark CHAMPION & Design (shown below) is registered for the following wares:
Sporting goods, namely, footballs, basket balls, volley balls, hand
balls, badminton shuttlecocks; table tennis balls, bats, tables,
bat bags; water polo balls; baseballs, skipping ropes; students'
ropes; ball pumps; whistles; javelins; iron dumbbells; roller skates;
health builders, namely muscle strengtheners.
In response to the Registrar notice, the registrant furnished the affidavit of Guo Jian Hua. Neither party filed a written submission and there was no oral hearing.
Section 45 requires the registrant to show use of the trade-mark at anytime during the two years immediately preceding the date of the notice. If the trade-mark is not in use, then the registrant must show the date the trade-mark was last in use and the reason for the absence of use since such date.
In his affidavit, Mr. Hua states that the registrant is a company which is primarily involved in the manufacturing of a wide variety of consumer products; that the registrant distributes many of these products to countries around the world and that it is the practice of the company to obtain protection for its trade-marks in those countries in which the products are sold. He submits that the registrant first used the trade-mark in Canada in association with the registered wares in 1964 and the trade-mark has been used regularly on these products since that date.
Although he has attached what he submits are specimens of the packaging used by the registrant for its CHAMPION & Design trade-marked product lines and he has submitted product information and promotion leaflets which he states are utilized by the registrant in the sales and promotion of its products abroad, there is no corroborating evidence showing use having occurred during the relevant period.
Concerning the single invoice submitted as Exhibit C, it shows a sale in January 1992, prior to the two-year period.
Although evidentiary overkill is not required to reply to a Section 45 notice, there must be sufficient evidence to permit the Registrar to arrive at a conclusion of use within the relevant time. Here, the evidence fails to do so.
In view of the above, I conclude that as the registrant has failed to show use of its trade-mark during the relevant period, that its trade-mark registration ought to be expunged.
Registration No. 225,897 will be expunged in compliance with the provisions of Section 45(5) of the Trade-marks Act.
DATED AT HULL, QUEBEC, THIS 2nd DAY OF November, 1995.
D. Savard
Senior Hearing Officer