Date: 19990311

     Docket: A-11-97

CORAM:      STRAYER J.A.

         DÉCARY J.A.

         ROBERTSON J.A.

B E T W E E N:

     BACAARDI & COMPANY

     Appellant

     " and "

     QUARRY CORPORATION LIMITED

     Respondent

HEARD at Ottawa, Ontario, Thursday, March 11, 1999

JUDGMENT delivered from the Bench at Ottawa, Ontario, Thursday, March 11, 1999

REASONS FOR JUDGMENT BY:      STRAYER J.A.

     Date: 19990311

     Docket: A-11-97

C O R A M:      STRAYER J.A.

         DÉCARY J.A.

         ROBERTSON J.A.

B E T W E E N:

     BACARDI & COMPANY

     Appellant

     " and "

     QUARRY CORPORATION LIMITED

     Respondent

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Ottawa

     on Thursday, March 11, 1999)

STRAYER J.A.

I.      While we are of the view that the affidavits filed by the respondent in response to a notice under section 45 of the Trade-marks Act are barely adequate, we are not persuaded that the motions judge made any reviewable error in setting aside the expungement of the respondent's trade-mark.

II.      We would however, dissociate ourselves from the motions judge's statement that a single sale "divorced from all context" might now be considered to be adequate use as a result of the amendment made to section 45 in 1994. In our view the requirement of use being "in the normal course of business", as prescribed by subsection 4(1), remains notwithstanding this amendment. We note, however, that the motions judge went on to make a finding that the sale here was in the normal course of business and we believe there was evidence upon which he could so find to that effect.

III.      The appeal will therefore be dismissed with costs.

    

                                         J.A.