tag:blogger.com,1999:blog-5574479.post1063359728278654716..comments2024-03-28T09:05:22.006+00:00Comments on The IPKat: LDS Church and Mormon fundamentalist group set for Canadian clash over concurrent useVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5574479.post-23804472973638254782014-07-07T18:31:53.338+01:002014-07-07T18:31:53.338+01:00A few minor points. The number provided was the ap...A few minor points. The number provided was the application number. The issue number is TMA796742. Further, the filing date was Aug 8, 2007, with no claim to prior use in Canada. As well, I note the mark in question is for the design, and not to the words themselves. <br /><br />The question will be whether the mark was distinctive of the applicant at the time of filing, namely August 8, 2007. At this point the Blackmore group had already been in Canada for over 40 years, however they may not have been using the mark as registered or a confusingly similar variant.<br /><br />As an aside I wonder why the conflict over the corporate registry would require this litigation as corporate names do not actually confer any trademark rights in BC. The 'denial of registration' for a corporate name may be being used simply as a vehicle to create a new controversy in order to get around potential limitation period concerns. <br /><br />If the mark is valid, this is probably a good example for S.21 to apply. The "good faith" challenge will be interesting, as there is a clear claim of entitlement by both parties and it sounds as if false or misleading affiliation is being plead. <br /><br />However, given the long period of common law use and the (presumed) evidence that the mark was not adopted for the purposes of pirating/imitation would likely lead to a finding of good faith. <br /><br />As to public interest, that will be very interesting. Canadian courts generally seek to avoid adjudicating on the relative merits/validity of conflicting religious positions. The affiliation of Blackmore with polygamous activities may be considered relevant. However, while there was an attempt to convict in 2009 it was thrown out, and while a reference to a trial Court in BC which found that the Polygamy provisions of the criminal code are likely enforceable, there was and remains opinions to the contrary (such that 5 years after the original charge there has yet to be new charges, although there is an ongoing investigation). Given this background, it is not clear to what extent the Court would consider the association of Blackmore with polygamy 1) proven 2) contrary to public interest generally 3) relevant to any common law trademark rights they may have for this particular mark.<br /><br />All in all, an interesting trade mark case.Anonymousnoreply@blogger.com