SECTION
45 PROCEEDINGS
TRADE-MARK: THE PLANT DOCTOR and DESIGN
REGISTRATION NO. 303,546
On October 24, 1989, at the request of
Messrs. Gowling, Strathy & Henderson, the
Registrar forwarded a Section 45 notice
to Randall Prue, the registered owner of
the above-referenced trade-mark registration.
The trade-mark THE PLANT DOCTOR and
Design (shown below) was registered on June
7, 1985 for use in association with the following wares and services:
Wares
Plant foods and other horticultural
accessories
comprising the following specific wares namely
liquid seaweed, fish emulsion, soils, pots, plant
lights, books, pamphlets and magazine articles.
Services: Sale, service and maintenance of as well as
the
educational development of the public as regards
green indoor plants.
In response to the Registrar's notice,
the affidavit of Randall Prue was filed.
Neither party filed a written submission and no oral hearing was conducted.
Mr. Prue states in his affidavit that he has used the trade-mark THE PLANT DOCTOR
and Design in Canada in association with
all the registered wares and services,
achieving a gross revenue in Canada of approximately $100,000.00 per year for
each of the last ten years.
As examples of the use of the trade-mark
in association with the registered
wares, the registrant has submitted photocopies of labels bearing subject
trade-
mark for the wares fish emulsion and liquid seaweed; a 1989 catalogue bearing
the
trade-mark and referring to products and services available; and a price list
also bearing the trade-mark. Both the
price list and the catalogue also
identify
the registrant. I am of the view that when a
consumer orders the wares from the
catalogue or price list bearing the trade-mark and then receives an invoice
bearing the trade-mark (see paragraph 8 iii) of the affidavit) that sufficient
notice is given of the trade-mark in association with the wares pursuant to S.
4(1) of the Act. From the statements contained in paragraph 8 of the affidavit
and the sales figures for each year, it
can be inferred that sales of the wares
were made at or immediately prior to the material date. Consequently, the
evidence submitted is sufficient to show use of the trade-mark THE PLANT DOCTOR
and Design by the registrant in association with all of the registered wares.
Concerning the services, I am satisfied
that Exhibits C, D and E show the
registered trade-mark in the advertising of all of the services. Also, Exhibit
C displays the registered trade-mark in the performance of the educational
development of the public regarding green indoor plants as it provides
information relating to green
indoor plants. It can be inferred from the sales
figures and the evidence in
its totality that all of the services were being
offered by the registrant at or immediately prior to the material date.
Consequently,
the evidence shows use of the trade-mark in association with the
services pursuant to S. 4(2) of the Trade-marks Act.
From the evidence filed in these proceedings, I have concluded that the trade-
mark was in use in the normal course of trade in association with the wares and
with the services. I
have arrived at
this conclusion bearing in mind the dictum
enunciated in Union Electric Supply Co. Ltd. v. Registrar of
Trade-marks, 63
C.P.R. (2d) 56). Therefore, registration No. 303,546 ought to be maintained on
the register.
Registration No. 303,546 will be maintained in compliance with the provisions of
Section 45(5) of the Trade-marks Act.