RON MATUSALEM & MATUSA OF FLORIDA INC. Appellant v. HAVANA CLUB HOLDING INC., S.A., 2011 FCA 244

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20110907 Docket: A-357-10 Citation: 2011 FCA 244 CORAM: NADON J.A. TRUDEL J.A. MAINVILLE J.A. BETWEEN: RON MATUSALEM & MATUSA OF FLORIDA INC. Appellant and HAVANA CLUB HOLDING INC., S.A. Respondent Heard at Montréal, Quebec , on September 7, 2011. Judgment delivered from the Bench at Montréal , Quebec , on September 7, 2011. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Date: 20110907 Docket: A-357-10 Citation: 2011 FCA 244 CORAM: NADON J.A. TRUDEL J.A. MAINVILLE J.A. BETWEEN: RON MATUSALEM & MATUSA OF FLORIDA INC. Appellant and HAVANA CLUB HOLDING INC., S.A.

Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Montréal, Quebec , on September 7, 2011) NADON J.A. [ 1 ] This is an appeal of the decision of Martineau, J. of the Federal Court (the judge) dated July 27, 2010, 2010 FC 786 .

The judge dismissed the Appellant’s appeal of a decision of the Registrar of Trade-marks which held that the Appellant’s proposed trade mark, “The Spirit of Cuba”, to be used in association with rum, was not registrable on the grounds that it was deceptively misdescriptive and that it lacked distinctiveness. [ 2 ] We can detect no error in law in the reasons given by the judge in dismissing the Appellant’s appeal of the Registrar’s decision nor can we conclude that the judge made any palpable and overriding error in his appreciation of the evidence and in the application of the relevant principles to his findings of fact. [ 3 ] What the Appellant is asking us, in effect, is to reassess the evidence available to the judge on the record before him.

That, absent an error on the part of the judge, we cannot do. [ 4 ] For these reasons, the appeal will be dismissed with costs. “M. Nadon” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-357-10 APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED JULY 27, 2010, T-2145-09 ( 2011 FC 786 STYLE OF CAUSE: RON MATUSALEM & MATUSA OF FLORIDA INC. v. HAVANA CLUB HOLDING INC., S.A.

PLACE OF HEARING: Montréal , Quebec DATE OF HEARING: September 7, 2011 REASONS FOR JUDGMENT OF THE COURT BY: NADON, TRUDEL, MAINVILLE JJA. DELIVERED FROM THE BENCH BY: NADON J.A. APPEARANCES : Pavol Janura FOR THE APPELLANT Greg Moore Isabelle Jomphe FOR THE RESPONDENT SOLICITORS OF RECORD : Brouillette & Partners LLP Montréal, Quebec FOR THE APPELLANT Goudreau Gage Dubuc Montréal, Quebec FOR THE RESPONDENT