ALLIANCE LAUNDRY SYSTEMS LLC Appellant v. WHIRLPOOL, 2015 FCA 232

Date: 20151028 Docket: A-24-15 Citation: 2015 FCA 232 CORAM: NADON J.A. TRUDEL J.A. SCOTT J.A. BETWEEN: ALLIANCE LAUNDRY SYSTEMS LLC Appellant and WHIRLPOOL CANADA LP Respondent Heard at Montréal, Quebec, on October 28, 2015. Judgment delivered from the Bench at Montréal, Quebec, on October 28, 2015. REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: TRUDEL J.A. DISSENTING REASONS BY: SCOTT J.A. Date: 20151028 Docket: A-24-15 Citation: 2015 FCA 232 CORAM: NADON J.A. TRUDEL J.A. SCOTT J.A.

BETWEEN: ALLIANCE LAUNDRY SYSTEMS LLC Appellant and WHIRLPOOL CANADA LP Respondent REASONS FOR JUDGMENT (Delivered from the Bench at Montréal, Quebec, on October 28, 2015). NADON J.A. [ 1 ] Before us is an appeal of a decision of Madam Justice Bédard of the Federal Court dated December 17, 2014 (amended on January 15, 2015)( 2014 FC 1224 ) upholding a decision of the Registrar of Trade-marks ( 2013 TMOB 218 ) dated December 18, 2013 which confirmed the registration of the respondent’s trade-mark at issue in association with the respondent’s goods.

[ 2 ] In my view, the appeal should be allowed. I am satisfied that the evidence of Mr. English, the Director/Manager of Whirlpool Corporation, does not, even on a generous view of its contents, meet the low threshold of evidence required to show use of the trade-mark at issue in association with the respondent’s goods. [ 3 ] To conclude that Mr. English’s evidence was sufficient to show use within the meaning of

section 45 of the Trade-marks Act , R.S.C., 1985, c. T-13 is, in my respectful view, unreasonable. [ 4 ] Thus the Judge below ought to have intervened.

Her failure to do so constitutes a palpable and overriding error which justifies intervention on our part. [ 5 ] I would therefore allow the appeal with costs, I would set aside the judgment of the Federal Court and rendering the judgment which ought to have been rendered, I would allow the appellant’s appeal from the decision of the Registrar and I would modify that decision by expunging Registration Number UCA15837 for the trade-mark SPEED QUEEN in association with the respondent’s goods. Finally, I would direct the Registrar to modify the register accordingly. "M. Nadon" J.A. “I agree.

Johanne Trudel” SCOTT J.A. (Dissenting Reasons) [ 6 ] Essentially for the reasons given by the Federal Court, I would dismiss the appeal with costs. [ 7 ] Considering that the case law is clearly to the effect that the burden of a registrant under

section 45 of the Trade-Marks Act to prove use of its mark is not a heavy burden, I have not been persuaded that Madam Justice Bédard made a palpable and overriding error in her assessment of the evidence or that she erred in law in concluding that the decision of the Registrar of Trade-marks upholding the registration of the respondent’s trade-marks at issue “SPEED QUEEN” in association with laundry washing machines and laundry dryers was reasonable. "André F. J. Scott" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD STYLE OF CAUSE: ALLIANCE LAUNDRY SYSTEMS LLC v.

WHIRLPOOL CANADA LP PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: October 28, 2015 REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: TRUDEL J.A. DISSENTING REASONS BY: SCOTT J.A. DELIVERED FROM THE BENCH BY: NADON J.A. APPEARANCES : Bob H. Sotiriadis Catherine Bergeron For The Appellant

Aaron Rubinoff Jennifer E. McKay John Siwiec For The Respondent SOLICITORS OF RECORD : Robic, LLP Montréal For The Appellant Perley-Robertson, Hill & McDougall LLP Ottawa For The Respondent