IN THE MATTER OF SECTION 45 PROCEEDINGS
respecting registration No. TMA128,990 for the trade-mark
BRAVO standing in the name of Bravo Records & Music Limited
On March 25, 2002, at the request of Bravo Company, the Registrar forwarded a Section 45 Notice to Bravo Records & Music Limited, the registered owner of the above referenced trade-mark registration. The trade-mark BRAVO is registered for use in association with the following wares: (1) Phonograph records; and (2) Sheet music.
The registrant furnished the statutory declaration of Robert Cullinton, Chief Operation Officer of Bravo Records & Music Limited. Only the requesting party filed written arguments and an oral hearing was not conducted.
Section 45(1) of the Trade-marks Act, R.S.C. 1985, c.T-13 [hereinafter the Act] requires a registered owner to show use of its mark in association with each of the registered wares at any time during the three year period immediately preceding the date of the Section 45 Notice. Accordingly, the relevant period for showing use in the present case is at any time between March 25, 1999 and March 25, 2002.
After identifying himself in the first paragraph, the remaining two statements made by Mr. Cullinton in his statutory declaration are as follows:
2. The trade-mark Bravo has been used regularly and is still in use in respect of the wares and/or services.
3. The trade-mark has been used for the sale of phonograph records (wares 1) as early as March 25, 1960 and used on wares 2 from approximately November 29, 1962.
The requesting party submits that the evidence fails to show use of the trade-mark in the normal course of trade in association with either of the wares during the relevant period. I agree.
Concerning use in Canada, the declarant in this case has merely stated that the mark has been used since as early as March 25, 1960, and November 29, 1962, on the wares marked (1) and (2) respectively. Mr. Cullinton has not provided any evidence to support such a bare statement. He has not provided any facts concerning the use that may have been made, and therefore it is impossible to determine if the use that had been made was use complying with s.4(1) of the Act. Section 4(1) reads:
4(1) A trade-mark is deemed to be used in association with wares if, at the time of transfer of the property in or possession of the wares, in the normal course of trade, it is marked on the wares themselves or on the packages in which they are distributed or it is in any other manner so associated with the wares that notice of the association is then given to the person to whom the property or possession is transferred.
Mr. Cullinton has not described the normal course of trade with respect to the trade-mark and the wares, and he has failed to describe the manner the trade-mark was associated with the wares at the time of their transfer. He has not provided any sales figures or invoices which would have supported his statement that the trade-mark has been used since 1960 and 1962 respectively. Finally, there is absolutely no evidence showing use during the relevant three year period, i.e. between March 25, 1999, and March 25, 2002.
Disposition:
In view of the foregoing, Registration No. TMA 128,990 will be expunged accordingly in compliance with the provisions of Subsection 45(5) of the Act.
DATED AT Gatineau, QUEBEC, THIS 29th DAY OF August, 2005.
C. Folz
Member,
Trade-Marks Opposition Board