KITASOO BAND COUNCIL Appellant v. URBAN, 2015 FCA 233

Date: 20151028 Docket: A-436-14 Citation: 2015 FCA 233 CORAM: GAUTHIER J.A. WEBB J.A. GLEASON J.A. BETWEEN: KITASOO BAND COUNCIL Appellant and URBAN DISTILLERS INC. Respondent Heard at Vancouver, British Columbia, on October 28, 2015. Judgment delivered from the Bench at Vancouver, British Columbia, on October 28, 2015. REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. Date: 20151028 Docket: A-436-14 Citation: 2015 FCA 233 CORAM: GAUTHIER J.A. WEBB J.A. GLEASON J.A. BETWEEN: KITASOO BAND COUNCIL Appellant and URBAN DISTILLERS INC.

Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Vancouver, British Columbia, on October 28, 2015). GAUTHIER J.A. [ 1 ] This is an appeal by the Kitasoo Band Council from a decision of the Federal Court on a

summary judgment motion brought by the appellant and by the City of Terrace in the context of their action for infringement of their official marks. [ 2 ] We have not been persuaded that the judge made a palpable and overriding error in finding that the applicants had failed to establish that either of them had used the official marks as of the relevant dates. (sub-paragraph 9(1)( n )(

i) of the Trade-marks Act , R.S.C. 1985, c.T-13 ). Thus, their marks could not be enforced against the respondent. [ 3 ] In light of the way in which the applicants cast their motion for

summary judgment seeking a declaration of enforceability of their marks and a declaration of infringement against the respondent, we do not accept the appellant’s argument that the judge had no jurisdiction to grant judgment, effectively dismissing their action. [ 4 ] However, in the absence of a

summary judgment motion in respect of the Counterclaim of the respondent, the judge erred in granting the Counterclaim.

[ 5 ] Thus, the appeal will be granted in part without costs. The judgment of the Federal Court will be amended to read as follows: The action is dismissed with costs. "Johanne Gauthier" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-436-14 (APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE MARTINEAU OF THE FEDERAL COURT, DATED SEPTEMBER 2, 2014, DOCKET NO. T-700-13.) STYLE OF CAUSE: KITASOO BAND COUNCIL v. URBAN DISTILLERS INC. PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: October 28, 2015 REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. WEBB J.A.

GLEASON J.A. DELIVERED FROM THE BENCH BY: GAUTHIER J.A. APPEARANCES : Bruce M. Green For The Appellant James J. D. Wagner For The Respondent SOLICITORS OF RECORD : Oyen Wiggs Green & Mutala LLP Barristers and Solicitors Vancouver, British Columbia For The Appellant Silvergate Law Barristers and Solicitors Vancouver, British Columbia For The Respondent