Federal Court Decisions

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Date: 20040112

Docket: T-599-03

Citation: 2004 FC 33

Montréal, Quebec, the 12th day of January 2004

Present: RICHARD MORNEAU, PROTHONOTARY

BETWEEN:

ECLIPSE INTERNATIONAL FASHIONS CANADA INC.

Applicant

and

SHAPIRO COHEN

Respondent

Motion by the applicant under Rule 369 for an order by the Court pursuant to Rule 312(a) of the Federal Court Rules, 1998, to allow the applicant to file a supplementary affidavit, namely the affidavit of Tannis Taylor dated October 30, 2003, and Exhibit A-18 in support of that affidavit.

[Rules 312(a) and 369 of the Federal Court Rules, 1998]


REASONS FOR ORDER AND ORDER

[1]         I am satisfied from reading the records filed by the parties in connection with the motion at bar that the Court should authorize the service and filing of Ms. Taylor's affidavit, dated October 30, 2003.

[2]        In my opinion, the applicant provided a reasonable justification for why the decision of the Registrar of Trade-Marks on February 27, 2003, did not lead it, in its basic affidavit under Rule 306, to provide further justification of its use of the trade-mark at issue, and that it is only the position taken by the respondent in paragraph 23 of the respondent's record which now leads the applicant to feel the need to clarify or provide further justification of the actual use of the trade-mark "Eclipse".

[3]        I also feel that this affidavit by Ms. Taylor will add to and clarify the evidence contained in Mr. Khanna's affidavit dated May 14, 2003. In that respect, Ms. Taylor's affidavit will serve the interests of justice, could possibly assist the Court on the merits and in the circumstances is not likely to cause the respondent any detriment.


[4]        This motion by the applicant is accordingly allowed, with costs in the cause. Consequently, on or before January 22, 2004, the applicant must serve and file Ms. Taylor's affidavit dated October 30, 2003, and the documentation in support thereof.

"Richard Morneau"

Prothonotary

Certified true translation

Suzanne M. Gauthier, C Tr, LLL


                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-599-03

STYLE OF CAUSE:                                                   ECLIPSE INTERNATIONAL FASHIONS CANADA INC.

Applicant

and

SHAPIRO COHEN

Respondent

WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:                                                                      January 12, 2004

WRITTEN SUBMISSIONS:

Claudette Dagenais                                                        FOR THE APPLICANT

Nadia Sabik

Chantal Bertosa                                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

Dagenais & Associés                                                     FOR THE APPLICANT

Montréal, Quebec

Shapiro Cohen                                                              FOR THE RESPONDENT

Ottawa, Ontario

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