Date: 19980224
Docket: T-1518-97
MONTREAL, QUEBEC, THIS 24th DAY OF FEBRUARY 1998
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
In the matter of an application to expunge
trademark registration No. TMA448,988 dated
October 20, 1995 for the trademark "BELLA PASTA"
BETWEEN:
MAISON DES PÂTES PASTA BELLA INC.
Applicant
AND
OLIVIERI FOODS LIMITED
Respondent
ORDER AND REASONS FOR ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY
[1] I am of the view that the applicant must fail on its motion to file additional evidence in support of its application to expunge trade-mark registration number TMA448,988 for the Respondent's trade-mark "BELLA PASTA".
[2] I believe that it is important at the outset to bear in mind that the hearing of this application is scheduled for March 3, 1998 and that a court file should not be disturbed within a week from the hearing unless special circumstances warrant it.
[3] The affidavit filed by the applicant in support of its originating notice of motion discloses the alleged use of the trade-name "PASTA BELLA" by the applicant and its predecessors in title.
[4] Upon reading that affidavit, the affidavit filed by the applicant in support of the motion at bar as well as the transcript of its examination thereunder, I am of the view that the applicant would have discovered the evidence it now seeks to introduce had it not assumed that this evidence had been destroyed and had a thorough search of its files and those of its predecessors in title - predecessors which are all part of the Rizzuto Group of compagnies - been carried prior to the filing of its originating notice of motion. A thorough search would have avoided any delay in the first place.
[5] In addition, I do not believe that this lack of proper search on the part of the applicant could be outweighed by any intrinsic value which this additional evidence may have (see Prouvost S.A. v. Munsingwear Inc., [1992] 2 F.C. 541 (C.A.) at 546).
[6] As for the letters originating from past solicitors for the applicant, I am of the view, based on the evidence submitted, that the applicant was sufficiently aware of them prior to the filing of the originating notice of motion that they should have been included if the applicant intended to rely on them on the merits.
[7] For these reasons, this application is dismissed with costs.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
February 24, 1998
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-1518-97
MAISON DES PÂTES PASTA BELLA INC.
Applicant
AND
OLIVIERI FOODS LIMITED
Respondent
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:February 23, 1998
ORDER AND REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF ORDER AND REASONS FOR ORDER:February 24, 1998
APPEARANCES:
Consolato Gattuso for the Applicant
Cheryl Morton
Mark K. Evans for the Respondent
SOLICITORS OF RECORD:
Consolato Gattuso for the Applicant
Cheryl Morton
Mitchell Gattuso
Montreal, Quebec
Mark K. Evans for the Respondent
Smart & Biggar
Toronto, Ontario