TRADUCTION/TRANSLATION
IN THE MATTER OF AN OPPOSITION by Pharmacyclics Inc. to application No. 1165175 for the trade-mark PHARMACLIK filed by McKesson Canada Corporation
On January 21, 2003, McKesson Canada Corporation (the “Applicant”) filed an application to register the trade-mark PHARMACLIK (the “Mark”) based upon proposed use of the Mark in association with the following services:
[translation] Distribution and electronic commerce services via a transactional internet site giving retail and institutional pharmacies access to a catalogue of pharmaceutical and parapharmaceutical products, order taking and shipping and numerous other supply management tools (the “Services”).
The application was advertised in the Trade-marks Journal on December 10, 2003.
On May 7, 2004, Pharmacyclics Inc. (the “Opponent”) filed a statement of opposition to that application. The grounds of opposition may be summarized as follows:
- The application does not meet the requirements of paragraphs 30(e) and (i) of the Trade-marks Act (R.S.C. 1985, c. T-13, as amended) (the Act) in that the Applicant could not be satisfied that it was entitled to use the Mark in Canada in association with the Services and it wrongfully alleged that it intended on using the Mark in association with the Services described in its application;
- The Applicant is not the person entitled to the registration of the Mark, having regard to the provisions of paragraphs 16(3)(b) and (c) of the Act, in that the Mark is confusing with (i) the Opponent’s trade-mark PHARMACYCLICS, for which an application for registration was filed with the Registrar on June 22, 2000, under number 1064511, in association with the following wares: “(1) Pharmaceuticals for the diagnosis and treatment of cancer, cardiovascular and infectious diseases. (2) Medical, surgical and diagnostic apparatus and instruments, namely lasers, catheters, optical fibres and diffusers; parts and fittings for the aforesaid goods” and (ii) the Opponent’s trade-names PHARMACYCLICS INC. and PHARMACYCLICS used in association with the operation of a business in the field of the research and development, manufacture, licensing and distribution of pharmaceutical preparations since approximately 1991; and
- The Mark is not distinctive of the Applicant’s Services within the meaning of section 2 of the Act in that the Mark is not adapted to distinguish and does not actually distinguish the Applicant’s Services from the wares and business of the Opponent in association with which the Opponent’s trade-mark and trade-names described in the preceding paragraph are used.
The Opponent filed a counter statement in which it denied all the grounds of opposition.
The Opponent’s evidence consists of the affidavits of Richard A. Miller and Diane Montreuil. The Applicant’s evidence consists of the affidavits of Brigitte Hénault and Zeina Waked and the statement of Marylène Gendron. None of the witnesses were cross-examined.
Both parties submitted written arguments and took part in an oral hearing.
General principles and relevant dates
The legal burden is upon the Applicant to show that its application complies with the provisions of the Act, but there is however an initial evidential onus on the Opponent to adduce sufficient admissible evidence from which it could reasonably be concluded that the facts alleged to support each ground of opposition exist. Once this initial onus is met, the Applicant still has to prove, on a balance of probabilities, that the particular grounds of opposition should not prevent the registration of the Mark [see to that effect Massimo De Berardinis v. Decaria Hair Studio (1984), 2 C.P.R. (3d) 319 (T.M.O.B); John Labatt Ltd. v. Molson Companies Ltd. (1990), 30 C.P.R. (3d) 293 (F.C.); Joseph E. Seagram & Sons Ltd. and others v. Seagram Real Estate Ltd., (1984) 3 C.P.R. (3d) 325 (T.M.O.B); Dion Neckwear Ltd. v. Christian Dior, S.A. and others, (2002), 20 C.P.R. (4th) 155 (F.C.A.); and Wrangler Apparel Corp. v. The Timberland Company, [2005] F.C. 722].
The relevant dates for assessing the circumstances of each of the grounds of opposition in this case are as follows:
- Grounds based on section 30 of the Act: the date of the filing of the application [see to that effect Georgia-Pacific Corp. v. Scott Paper Ltd. (1984), 3 C.P.R. (3d) 469 (T.M.O.B)];
- Grounds based on paragraphs 16(3)(b) and (c) of the Act: the date of filing of the application; and
• Ground based on the non-distinctiveness of the Mark: generally accepted as being the date of filing of the statement of opposition [see to that effect Metro-Goldwyn-Mayer Inc. v. Stargate Connections Inc. (2004), 34 C.P.R. (4th) 317 (F.C.)].
Evidence
• Opponent’s evidence
Affidavit of Richard A. Miller
Richard Miller states that he has been the President and Chief Executive Officer of the Opponent since 1991 and is one of its founders. Since its foundation in 1991, the Opponent has developed new treatments for cancer and other diseases using texaphyrin molecules. The Opponent holds a licence from the University of Texas for the use of texaphyrin technology.
The Opponent is based in Sunnyvale, California, and employs some 120 persons, most of whom are dedicated to the research and development, manufacture, quality control, regulatory issues and preclinical trials of pharmaceutical products.
The Opponent developed a certain number of potential medications using texaphyrin. Two of these products are “Xcytrin,” against cancer, and “Antrin,” against arteriosclerosis. Some of its other products seem to hold promise in the fight against other diseases, such as AIDS and Lou Gehrig’s disease. Mr. Miller explains that the products “Xcytrin” and “Antrin” have not yet been marketed because they were still at the clinical trials stage.
Mr. Miller states that “PHARMACYCLICS” is the Opponent’s master trade-mark and the main component of its trade-name. He states that this trade-mark and this trade-name have been used in association with almost all of the Opponent’s activities since it was founded and submits in support of his affidavit specimens of business cards, letterhead paper and envelopes used in the Opponent’s daily activities. I will come back to the use made therein of the expression “PHARMACYCLICS” later.
Mr. Miller also states that the trade-mark and trade-name PHARMACYCLICS are used by the Opponent it its correspondence with Canadian and American regulatory authorities, and he filed a representative specimen of correspondence sent to Health Canada to that effect.
The Opponent conducts clinical trials of its products in Canada and the United States. The first clinical trials in Canada were carried out in 1998. Mr. Miller lists some 15 clinical trial centres that have participated in the Opponent’s clinical trials in Canada. This list includes hospitals in various provinces. On this point, Mr. Miller filed specimens of correspondence with several of these centres. I am of the opinion that this correspondence supports to a certain extent the Opponent’s claims regarding the use in Canada of the expression “PHARMACYCLICS” as a trade-name, although this use seems to be quite limited because it only involves clinical trials contracted with 15 Canadian centres and only seems to have begun in 1998, rather than in 1991, as was alleged by the Opponent in its statement of opposition. However, this correspondence, as well as all of the documentation filed by Mr. Miller, cannot support the Opponent’s claims regarding the use in Canada of the expression “PHARMACYCLICS” as a trade-mark within the meaning of section 4 of the Act.
In fact, all of the documentation filed by Mr. Miller shows that the expression “PHARMACYCLICS” is only used to identify the Opponent’s business, rather than the products listed in its application for registration. On this point, I would add that the only evidence that could be associated with the category of pharmaceutical products specified in the Opponent’s application for registration does not concern the trade-mark “PHARMACYCLICS” but rather the trade-mark “Xcytrin,” mentioned above, and the product called “Gadolinum Texaphyrin.” The Opponent’s evidence is also silent on the other category of wares included in its application for registration, namely, medical, surgical and diagnostic apparatus and instruments. The lack of evidence of use of the PHARMACYCLICS trade-mark is in that sense consistent with the fact that the Opponent’s application has been filed on the basis of proposed use of the Mark in Canada. I will come back to this point when assessing the extent to which the trade-marks at issue have become known.
In his affidavit, Mr. Miller refers to the fact that the Opponent filed an application for registration of the trade-mark PHARMACYCLICS in Canada. He also states that the Applicant’s agents contacted the Opponent’s agents in December 2002 to discuss a possible coexistence agreement between the parties in respect of the trade-marks at issue. Negotiations followed but failed in mid February 2003. Mr. Miller states that the Applicant was careful not to reveal to the Opponent that it had submitted this application for registration on January 21, 2003, knowing full well that the Opponent would oppose such an application. I will come back to this aspect of the evidence later when assessing the ground of opposition based on paragraphs 30(e) and (i) of the Act.
Mr. Miller ends his affidavit by giving a personal opinion about the likelihood of confusion between the trade-marks at issue. I do not accept this personal opinion of the evidence, given that the witness is not responsible for determining the likelihood of confusion. It is up to the Registrar to do so, having regard to the applicable principles and the evidence on the record in this case.
Affidavit of Diane Montreuil
Diane Montreuil states that she is a legal assistant in the firm representing the Opponent.
In support of her affidavit, Ms. Montreuil filed a copy of a statement from the STRATEGIS database of the Canadian Intellectual Property Office (“CIPO”) (as this database was called when the affidavit was signed) concerning application number 1064511 for the trade-mark PHARMACYCLICS, filed by the Opponent on June 22, 2006.
• Applicant’s evidence
Affidavit of Brigitte Hénault
Brigitte Hénault states she has held the position of Director of Change Adoption Services, I.T., with the Applicant since September 2004. Before that, she had held a position of Director, Electronic Marketing, since February 2002. The Applicant is an industry leader in Canada in the supply and distribution of pharmaceutical products and related health-care products.
Ms. Hénault states that after this application was filed, the Applicant began using the Mark in Canada in association with the Services in April 2003 and that this use has been continuous and significant since then. The Mark was adopted to replace the trade-mark MEDICONTACT.CA that was previously used by the Applicant in association with the Services.
Ms. Hénault states that the Applicant offers a variety of integrated solutions through its business units. The Applicant’s main activities involve acquiring health products from manufacturers, storing those products and selling them to institutional and community pharmacies throughout Canada.
The Services offered in association with the Mark not only allow all types of pharmacies and pharmacists to order and manage their inventory of products on line, but also allow manufacturers of over-the-counter medications, prescription medications and narcotics, cosmetics, perfume and beauty products to advertise their products to those pharmacies and pharmacists through the transactional Web site https://www.pharmaclik.ca.
Ms. Hénault states that more than 4,300 pharmacies across Canada, representing some 20,000 users, have access to the Services offered in association with the Mark.
Ms. Hénault supplies sales figures for the Services offered in association with the Mark from 2003 to 2005, as well as the percentage that these sales figures represent in relation to the Applicant’s total sales, namely, $1.6 billon (27%) in 2003, $3 billion (45%) in 2004 and $3.7 billion (58%) in 2005. She also provides the amounts earmarked for promoting and advertising the Services in association with the Mark, including their pre-launch, namely, $4,000 in 2002, $187,000 in 2003, $42,000 in 2004 and $7,000 in 2005. Finally, Ms. Hénault provides several specimens of advertising materials distributed to the Applicant’s current and potential customers throughout Canada, including a specimen of the “PharmaClik User Guidebook,” specimens of promotional brochures and specimens of the PharmaClik newsletter periodically sent by the Applicant to its customers.
Ms. Hénault concludes her affidavit by stating that, according to her understanding, the usual practice followed in clinical and pre-clinical trials is that a medication is intended for doctors rather than pharmacists, and she adds that doctors do not have access to the Services in association with the Mark. I will not consider the first part of this last assertion, given that it is Ms. Hénault’s personal opinion.
Statement of Marylène Gendron
Marylène Gendron states that she is the secretary in charge of the trade-marks directory in the firm representing the Applicant.
In support of her statement, Ms. Gendron submitted the results of a search of the CIPO computerized register of trade-marks using the SAEGIS and STRATEGIS databases to find active trade-marks (that is, registered or pending trade-marks) including the term “pharma” in Class 5, which includes pharmaceutical products. The results of this search showed some 237 registered or pending trade-marks, some 47 of which use the term “pharma” as a prefix. I will come back to this aspect of the evidence when assessing the additional circumstances to be considered when applying the test for confusion.
Affidavit of Zeina Waked
Zeina Waked states that she is a paralegal in the trade-marks division of the firm representing the Applicant.
In support of her affidavit, Ms. Waked submitted several excerpts from “paper” or electronic dictionaries concerning the terms “cyclic” and “clik”. I will come back to this aspect of the evidence when assessing the inherent distinctiveness of the trade-marks at issue.
Analysis
I will now analyze the grounds of opposition on the basis of the evidence submitted in this case.
Grounds based on section 30 of the Act
As the Applicant noted, the Opponent did not file any evidence in support of the ground of opposition based on paragraph 30(e) of the Act. With regard to the ground of opposition based on paragraph 30(i) of the Act, the Opponent invokes the discussions that the parties undertook, as alleged above in Mr. Miller’s affidavit, to explore the possibility of concluding an eventual coexistence agreement. The Applicant submits that if such discussions were held between the parties, they were without prejudice and accordingly must not be taken into consideration in this case. Moreover, the Applicant submits that such discussions are in no way inconsistent with the fact that it might be satisfied that it is entitled to use the Mark in Canada. I agree with the Applicant, at least on this last point. Previous discussions held between the parties may not be set up against the Applicant in the circumstances of this case. Mr. Miller’s assertions on this point are vague to say the least and are not in any way supported by the evidence. For the purposes of my decision, I do not need to rule on whether or not the so-called discussions are privileged and whether or not they should be excluded from the evidence, given that I have no hesitation in concluding that those so-called discussions, as alleged, are by no means inconsistent with the fact that the Applicant might be satisfied that it is entitled to use the Mark in Canada. The fact that the Applicant may have approached the Opponent to try to negotiate a coexistence agreement does not necessarily mean that it was of the opinion that there was a likelihood of confusion between the proposed Mark and the Opponent’s trade-mark, or that it acted in bad faith in this case.
On the basis of all the evidence submitted by the Applicant, particularly the affidavit of Ms. Hénault, I am satisfied that at the time this application was filed, the Applicant intended to use the Mark in Canada and in fact did begin using it in association with the Services in April 2003. In closing, I would add that the application meets the formal requirements under paragraphs 30(e) and (i) of the Act.
Having regard to the foregoing, I conclude that the Opponent has not discharged the initial burden of proof on it under paragraphs 30(e) and (i) of the Act. Accordingly, I dismiss the grounds of opposition based on paragraphs 30(e) and (i) of the Act.
Ground based on paragraphs 16(3)(b) and (c) of the Act
The Opponent may discharge its initial burden of proof with regard to paragraphs 16(3)(b) and (c) of the Act by showing that its application for registration had been filed prior to the date of filing of the Applicant’s application and was pending at the date of advertisement of the Applicant’s application, and that it had used its trade-names PHARMACYCLICS INC. and PHARMACYCLICS in Canada prior to the date of filing of the Applicant’s application and had not abandoned that use at the date of advertisement.
This initial burden having been discharged in this case, it is up to the Applicant to show on a balance of probabilities that there is no likelihood of confusion between the Mark and the Opponent’s trade-mark and trade-names.
The test for confusion one of first impression and imperfect recollection. According to subsection 6(2) of the Act, the use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class.
In determining whether trade-marks or trade-names are confusing, the Registrar shall have regard to all the surrounding circumstances, including those mentioned 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. This list is not exhaustive, and different circumstances will be given different weight in a context-specific assessment [see to this effect Mattel Inc. v. 3894207 Canada Inc. (2006), 49 C.P.R. (4th) 321; and Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée et al (2006), 49 C.P.R. (4th) 401, [2006] 1 S.C.R. 824].
(a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known
The Mark is a combination of the term “PHARMA,” which suggests a connection with the pharmaceutical industry, and the fanciful term “CLIK,” whose phonetic equivalents “click” in English and “clic” and “clique” in French have different meanings, as appears from the definitions filed in support of the affidavit of Ms. Waked. Taking into account the nature of the Services associated with the Mark, I am of the view that it is reasonable in this case to find that the term “CLICK” suggests the act of briefly pressing (to click/“cliquer”) a computer mouse to choose a product or a specific function. Therefore, I am of the opinion that the Mark does have a certain, albeit rather weak, inherent distinctiveness.
Turning to the Opponent’s trade-mark and trade-names, I find that they too are a combination of the term “PHARMA” with another term, namely “CYCLICS,” which has various meanings, as appears from the definitions filed in support of Ms. Waked’s affidavit for this term and its phonetic equivalent (“cycliques”) in French. Taking into account those definitions, I consider that it is reasonable in this case to find that the term “CYCLICS” suggests the idea of a cycle or of chemical compounds whose molecules form a closed chain (a “ring”) in the pharmaceutical field. Therefore, I am of the opinion that the trade-mark and trade-names PHARMACYCLICS, like the Applicant’s Mark, have a certain, albeit rather weak, inherent distinctiveness. On this point, I would add that I consider it to be unlikely that the Opponent’s trade-mark and trade-names could be perceived as a combination of the English term “PHARMACY” with the French term “CLICS,” and in any event no such argument was made by the parties in this case.
The inherent distinctiveness of a trade-mark or trade-name may be enhanced by its use or promotion.
In this case, I consider that the Mark has become known to a certain extent because of the considerable use made of it in Canada since the month of April 2003, as evidenced by Ms. Hénault’s affidavit.
By comparison, and as explained above in the summary of the evidence submitted in this case, I consider that the Opponent’s trade-mark PHARMACYCLICS does not enjoy a particularly high level of recognition in Canada, considering that it has not yet been used as a trade-mark. As for the trade-names PHARMACYCLICS and PHARMACYCLICS INC, they enjoy a relatively very low recognition because of their limited use (see supra, clinical trials in at most 15 Canadian centres).
In view of the preceding, I am of the opinion that the assessment of this first factor is in the Applicant’s favour.
(b) the length of time the trade-marks or trade-names have been in use
As explained above, the Opponent’s evidence shows a very limited use of the trade-names PHARMACYCLICS and PHARMACYCLICS INC. in Canada since 1998. By comparison, the Applicant’s evidence shows considerable use of the Mark in Canada since April 2003. Although in terms of absolute number of years this second factor is in the Opponent’s favour, I am of the opinion that this factor is not significant in the circumstances.
(c) the nature of the wares, services or business; and (d) the nature of the trade
The Opponent submits that the Applicant’s Services are [translation] “complementary” to its wares and services and that they overlapped. The Applicant disagrees with this position and submits inter alia that if there is some overlap between the Applicant’s Services and the Opponent’s wares and services, in that they are both associated with the field of pharmaceuticals, common sense must nevertheless prevail in the assessment of these third and fourth factors.
In this case, the Applicant’s Services basically consist of a transactional Internet site that allows retail and institutional pharmacies to access a catalogue of pharmaceutical and parapharmaceutical products, place and send orders and use other supply management tools. The Applicant’s Services cater to retail and institutional pharmacies (as opposed to the Opponent’s clientele, which also includes doctors and the general public), that is, a specialized clientele. The Applicant’s transactional site is a management tool designed to assist pharmacies with their operations. When a pharmacy decides to retain the Services of the Applicant, it decides to manage its inventory through the Applicant’s transactional site. In a way, the Applicant becomes a business partner of the pharmacy. This is not a decision to be made lightly.
The Applicant’s Services are distinct from the wares and services of the Opponent, who is involved in the research and development, manufacture, quality control, regulatory matters and pre-clinical trials of pharmaceutical products. The fact that the Opponent’s wares as specified in its application for registration, as well as the Opponent’s services in association with its trade-names, concern medications that could possibly be ordered by pharmacists using the Applicant’s transactional site is not realistically sufficient in itself to conclude that the Applicant’s Services and the Opponent’s wares and services are in fact “complementary.” I therefore agree with the Applicant that the situation in this case cannot be simplified in that way.
Although the Applicant and the Opponent are both in the pharmaceutical field, the natures of their businesses are nevertheless different. The Applicant’s Services do not in any way involve the manufacture of medications or medical, surgical and diagnostic apparatus and instruments. I agree with the Applicant that a pharmacist cannot realistically confuse the Applicant’s sophisticated supply management services with the Opponent’s wares and services, which are equally sophisticated, considering all the circumstances in this case. This leads me to continue my analysis of the factors set out in subsection 6(5) of the Act.
(e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them
The Mark PHARMACLIK has a certain phonetic resemblance with the trade-mark PHARMACYCLICS and trade-names PHARMACYCLICS and PHARMACYCLICS INC. because of their mutual prefix “PHARMA” and because the last syllable of the Mark also has some phonetic similarity with the last syllable of the trade-mark and trade-name PHARMACYCLICS. However, the Mark has some phonetic differences with the Opponent’s trade-mark and trade-names, particularly the fact it has a different number of syllables. The degree of resemblance between the trade-marks and trade-names at issue in respect of the ideas suggested by them are quite low, given the different ideas suggested by the terms ”CLIK” and “CYCLICS,” as discussed above.
I consider that the differences between the trade-marks and trade-names at issue, particularly in terms of ideas, more than compensate for the resemblances that there may be between them. Accordingly, the assessment of this fifth factor favours the Applicant.
Additional circumstances
- State of the register
As stated above, the Applicant used the statement given by Ms. Gendron to adduce in evidence the results of a search she had made in the computerized register of trade-marks to find active trade-marks including the term “pharma” in Class 5, which includes pharmaceutical products. The search turned up some 237 registered or pending trade-marks, 47 of which use the term “pharma” as a prefix. The Opponent submits that these 47 trade-marks are all more different from the Mark than the trade-mark PHARMACYCLICS and the trade-names PHARMACYCLICS and PHARMACYCLICS. The Applicant, for its part, submits that this state of the register evidence shows that the term “pharma” is a common and familiar one in the pharmaceutical field and that no one can claim to have a monopoly over it. Without delving into the details of each of these 47 trade-marks, I agree with the Applicant that it is possible to infer in the circumstances that the term “pharma” is extensively used in the pharmaceutical field [see to this effect Ports International Ltd. v. Dunlop Ltd. (1992), 41 C.P.R. (3d) 432 (T.M.O.B.); Kellogg Salada Canada Inc. v. Maximum Nutrition Ltd. (1992), 43 C.P.R. (3d) 349 (F.C.A.); Del Monte Corporation v. Welch Foods Inc. (1992), 44 C.P.R. (3d) 205 (F.C.)]. Considering the relatively low inherent distinctiveness of the trade-marks and trade-names at issue, this additional circumstance is in the Applicant’s favour and is consistent with the established principle according to which small differences between weak trade-marks are sufficient to avoid any likelihood of confusion.
Conclusion – likelihood of confusion
Having regard to the foregoing, I conclude that the Applicant has shown on a balance of probabilities that there is no reasonable likelihood of confusion between the Mark which is the subject of the application, PHARMACLIK, and the trade-mark PHARMACYCLICS and the trade-names PHARMACYCLICS INC. and PHARMACYCLICS of the Opponent. Accordingly, I dismiss the grounds of opposition based on paragraphs 16(3)(b) and (c) of the Act.
Ground based on the distinctiveness of the Mark
As stated above, the relevant date for the assessment of this ground of opposition, which is also based on the question of confusion between the Mark and the Opponent’s trade-mark and trade-names, is generally accepted as being the date of filing of the statement of opposition.
The Opponent may discharge its initial burden of proof in respect of the Mark’s lack of distinctiveness by showing that its trade-mark and trade-names had become sufficiently known in Canada at the date of the statement of opposition to negate the distinctiveness of the Mark [see to that effect Motel 6, Inc. v. No. 6 Motel Ltd. (1981), 56 C.P.R. (2d) 44 (F.C.)].
As stated above, I am of the opinion that the Opponent did not show use of the mark PHARMACYCLICS as a trade-mark in Canada. As regards the trade-names PHARMACYCLICS and PHARMACYCLICS INC., the Opponent has at most shown a very restricted and limited use of them, revolving around experimental phases (clinical trials) conducted in approximately 15 Canadian centres. I consider that such use is insufficient in the circumstances of this case to negate the distinctiveness of the Applicant’s Mark. In addition, even if such use were sufficient, I am of the view that there is no likelihood of confusion between the Mark and the Opponent’s trade-names because of the evidence submitted and because the difference between the relevant dates does not have a real impact on my preceding conclusions to the effect that there is no likelihood of confusion. Accordingly, I also dismiss this ground of opposition.
Conclusion
In view of the preceding, and in the exercise of the authority delegated to me by the Registrar of Trade-marks under subsection 63(3) of the Act, I reject the opposition pursuant to the provisions of subsection 38(8) of the Act.
DATED AT MONTRÉAL, QUEBEC, ON SEPTEMBER 11, 2008.
Annie Robitaille
Member
Trade-marks Opposition Board
Certified true translation
Michael Palles