Date: 20030515
Docket: T-287-02
Citation: 2003 FCT 629
Ottawa, Ontario, this 15th day of May, 2003
Present: The Honourable Madam Justice Sandra J. Simpson
BETWEEN:
DELL COMPUTER CORPORATION
Applicant
and
LATITUDE COMMUNICATIONS INC.
Respondent
REASONS AND ORDER
UPON application by Dell Computer Corporation ("Dell") pursuant to section 56 of the Trade-marks Act, R.S.C. 1985 c. T-13 by way of an appeal from the decision of the Registrar of Trade-marks (the "Registrar") dated December 20, 2001 (the "Decision") in the matter of an opposition by Latitude Communications Inc. (the "Respondent") to application number 746,774 for the trade-mark LATITUDE filed by Dell;
AND UPON hearing the submissions of counsel for Dell in chambers in Toronto on Wednesday, May 7, 2003;
AND UPON being advised that the appeal is unopposed by the Respondent;
AND UPON reviewing the additional evidence in the form of a co-existence agreement executed in June of 2002 (the "Agreement") by Dell and Next Wood Inc., the owner of the registered trade-mark;
AND UPON determining that the Agreement acknowledges that there has been no confusion in the past between Dell's computer wares and Next Wood Inc.'s custom office furniture in connection with the name "LATITUDE" and that steps will be taken to ensure that there will be no confusion in the future;
AND UPON being satisfied that the Agreement is a significant document which would have materially affected the Registrar's Decision.
NOW THEREFORE THIS COURT ORDERSthat:
(i) the appeal is allowed;
(ii) the Decision is hereby set aside;
(iii) Dell's trade-mark application number 746,774 is hereby allowed; and
(iv) there is no order as to costs.
"Sandra J. Simpson"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-287-02
STYLE OF CAUSE: DELL COMPUTER CORPORATION
Applicant
- and -
LATITUDE COMMUNICATIONS INC
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 7, 2003
REASONS FOR ORDER BY: SIMPSON J.
APPEARANCES BY: Mr. Aaron Schwartz
Mr James Buchan
For the Applicant
No One Appearing
For the Respondent
SOLICITORS OF RECORD: GOWLING LAFLEUR HENDERSON LLP
Barristers & Solicitors
Suite 4900, Commerce Court West,
Toronto, Ontario
M5L 1J3
For the Applicant
FEDERAL COURT OF CANADA
Date:20030515
Docket: T-287-02
BETWEEN:
DELL COMPUTER CORPORATION
Applicant
- and -
LATITUDE COMMUNICATIONS INC
Respondent
REASONS FOR ORDER