SECTION 45 PROCEEDINGS
TRADE-MARK: DEXLON
REGISTRATION NO. TMA 154,512
On September 14, 1989, at the request of
Marks & Clerk acting on behalf of The
Dexter Corporation, the Registrar forwarded a Section 45 notice to American
Seating Company, the registered owner of the above-referenced trade-mark
registration.
The trade-mark DEXLON was
registered on December 8, 1967 for use in association
with the wares "chair seats and backs mo1ded of plastic materia1".
In reply to the Registrar's notice the
registrant furnished the affidavit of
Albert H. Meyer. Only the requesting party submitted a written submission;
there
was no oral hearing.
The affidavit filed is in my
view ambiguous. It does not contain a clear
assertion of use of the trade-mark DEXLON in association with the registered
wares "chair seats and backs mo1ded of plastic materia1".
Furthermore, it does
not contain any information as to the registrant's normal course of trade in
association with the wares.
What Mr. Meyer states is that
American Seating still uses the mark in Canada as
a trade name for its plastic parts to its stadium chairs; that the
"product which
DEXLON is used on has been shipped into Canada as evidenced by Exhibit B".
Exhibit B is an invoice of the registrant dated December 22, 1986 (almost three
years preceding the date of the Section 45 notice) which makes reference to
"10,925 # 306 Stadium Chairs, to be
manufactured in Canada". Without further
details such an invoice cannot be
considered evidence of a sale of the registered
wares by the registrant, and furthermore, it does not show any use of the
trade-
mark as defined in Section 4(1) of the Act in association with the registered
wares.
Mr. Meyer then states that "DEXLON
plastic is an integral part of the American
Seating's stadium chairs as evidenced by Exhibit C, a copy of
specifications".
The specifications are for Stadium Chairs, Model 406 (which is not the model
referred to in the invoice of December 22, 1986). From the specifications
submitted as Exhibit C it would appear that the trade-mark DEXLON identifies the
plastic material to be used in the construction of the "backs" .and "seats" as
opposed to the finished products covered by the registration.
Mr. Meyer concludes by stating that
"American Seating continues to promote its
products which include DEXlON" and "American Seating still
uses DEXlON as a
trade-mark for its plastic components to its stadium products".
Having reviewed the evidence filed in this
case, I find myself in complete
agreement with the requesting party that the evidence as filed is clearly
deficient in that it does not show use of the trade-mark at the material date
in
association with the registered wares in the manner prescribed by Section 4(1)
of the Act.
Therefore, I can only conclude that the
trade-mark was not in use in Canada in
association with the registered wares at the material date. Consequently, its
registration ought to be expunged.
Registration No. 154,512 will be expunged
in compliance with the provisions of
Section 45(5) of the Trade-marks Act.
DATED AT HUll, QUEBEC, THIS 29th DAY OF May 1992.
(Mrs.) Denise Savard
Senior Hearing Officer
Section 45