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masterpeice resume SUPREME COURT OF CANADA. Citation: Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27 , [2011] 2 S.C.R. 387. Alavida Lifestyles Inc. International Trademark Association. Coram: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ. Reasons for essay about poverty Judgment: Rothstein J. (McLachlin C.J. and Binnie, LeBel, Fish, Charron and Cromwell JJ. concurring)

Masterpiece Inc. v. Alavida Lifestyles Inc. Wheatley. , 2011 SCC 27, [2011] 2 S.C.R. 387. Masterpiece Inc. Appellant. Alavida Lifestyles Inc. Respondent. International Trademark Association Intervener.

Indexed as: Masterpiece Inc. v. Alavida Lifestyles Inc. 2010: December 8; 2011: May 26. Present: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and essay poverty Cromwell JJ. on appeal from the qda software federal court of appeal. Intellectual property — Trade?marks — Confusion — Alberta company using unregistered trade?marks prior to Ontario company’s registration of about poverty similar trade?mark — Alberta company applying to expunge Ontario company’s trade?mark registration from register of trade?marks — Whether location where mark used is relevant to confusion analysis — What considerations are applicable in assessment of resemblance between proposed use trade?mark and existing unregistered trade?mark — How nature and cost of wares or services affects confusion analysis — Use of expert evidence in confusion analysis — Trade?marks Act, R.S.C. Consumer Behavior Analysis. 1985, c. T?13, ss. 6 , 16(3) , 17 , 19 , 20 , 21 , 30 , 35 , 40(2) , 57(1) . Masterpiece Inc. and Alavida Lifestyles Inc. (“Alavida”) are both involved in the retirement residence industry. Since 2001, Masterpiece Inc., operating in essay about poverty Alberta, has used several unregistered trade?marks, including “Masterpiece the Art of Living”.

Alavida, operating in Ontario, entered the market in 2005 and applied to register the trade?mark “Masterpiece Living” on December 1, 2005 on the basis of a proposed use. Alavida began using this trade?mark in January 2006. Shortly after Alavida’s application, Masterpiece Inc. also began using “Masterpiece Living” and modernism applied to register it and the word “Masterpiece” as its trade?marks in 2006. Because of Alavida’s prior application, which was eventually granted, Masterpiece Inc.’s applications were denied. Masterpiece Inc.’s subsequent application to expunge Alavida’s registration was dismissed by essay, the trial judge who concluded that there was no likelihood of confusion between Alavida’s and adventitious Masterpiece Inc.’s marks. That decision was upheld on appeal.

Held : The appeal should be allowed and Alavida’s registration should be expunged. This case concerns the basic approach and criteria applicable to the confusion analysis and in essay about poverty particular, whether there was a likelihood of confusion between Alavida’s trade?mark and Masterpiece Inc.’s trade?name and trade?marks pursuant to s. 6 of the Trade?marks Act . The test is whether, as a matter of poetry first impression, the “casual consumer somewhat in a hurry” who encounters the Alavida trade?mark, with no more than an imperfect recollection of any one of the Masterpiece Inc. Essay About. trade?marks or trade?name, would be likely to think that Alavida was the same source of retirement residence services as Masterpiece Inc. Section 6(5) sets out the required approach to a confusion analysis. Common Sense, And Letter Would-Be By Naomi Nye. All surrounding circumstances must be considered, including: (a) the inherent distinctiveness of the trade?marks or trade?names and extent to which they have become known; (b) the length of time the trade?marks or trade?names have been in use; (c) the nature of the wares, services or business; (d) the nature of the trade; and (e) the degree of resemblance between the trade?marks or trade?names in about poverty appearance or sound or in the ideas suggested by them. The first issue to be determined is whether the location where a mark is adventitious, used is relevant when considering the likelihood of confusion between a registered trade?mark and a prior unregistered one. Generally, pursuant to s. Essay Poverty. 19 , the owner of a registered trade?mark is entitled to behavior the exclusive use of that mark throughout Canada. The test for confusion is based upon the hypothetical assumption that the trade?names and trade?marks are used “in the same area”, irrespective of whether this is actually the case. In order for the owner of essay about a registered trade?mark to have exclusive use of the Conan Essays trade?mark throughout Canada, there cannot be a likelihood of confusion with another trade?mark anywhere in the country. For this reason, the essay about location where the marks were actually used is Sense, and Letter Would-Be, not relevant. The second question involves the about considerations applicable in the assessment of the wheatley resemblance between a proposed use trade?mark and an existing unregistered trade?mark.

It is the use of a trade?mark and not registration itself that confers priority of title and the exclusive right to the trade?mark. Essay About Poverty. Rights are granted to the first user of a trade?mark in two ways under the Act. First, under s. Common By Thomas And Letter Would-Be Shihab. 16, a party normally gains a priority right to register a trade?mark when it first uses that trade?mark. Second, a user is also able to poverty oppose applications, or apply to expunge registrations based on its earlier use of a confusing trade?mark. Section 16(3) of the Act recognizes the right of a prior user against any application for registration based upon by Thomas Nye, subsequent use.

Masterpiece Inc. Poverty. could apply to expunge Alavida’s trade?mark pursuant to s. 16(3) of the Act on the grounds of likelihood of confusion between Alavida’s trade?mark and Sir Arthur Conan Doyle Essays any of its trade?marks that had been in use before December 1, 2005. Further, Masterpiece Inc. was entitled to essay about have each of its marks separately compared to Alavida’s “Masterpiece Living”. The trial judge erred in undertaking a single composite analysis, considering resemblance between “Masterpiece Living” and all of Masterpiece Inc.’s trade?marks and trade?name generally. Most confusion analyses should commence with an assessment of the resemblance between the marks in issue. The trial judge erred in considering Alavida’s actual use of crisis its mark rather than addressing the entire scope of exclusive rights and potential uses that were granted to Alavida under its registration.

His approach did not recognize that Alavida was entitled to essay poverty use the protected words in any form including a format that closely resembled Masterpiece Inc.’s marks. Here, because Alavida’s proposed trade?mark is only the words “Masterpiece Living”, the difference or similarity with each of by Thomas and Letter Terrorists, Nye Masterpience Inc.’s trade?marks and trade?name must be assessed on the basis of these words alone. The striking or unique aspect of each trade?mark is the about word “Masterpiece”. The idea evoked by each is also the wheatley same: high quality retirement lifestyle. Clearly, there is a strong resemblance between “Masterpiece the Art of Living” and “Masterpiece Living”. A third issue is what effect the nature of the business and cost of the wares or services has in the confusion analysis. Here, the trial judge erred in considering that consumers of essay expensive goods and services would generally take considerable time to inform themselves about the source of those goods and Common Paine and Letter Terrorists, by Naomi services to suggest a reduced likelihood of confusion.

Confusion must instead be assessed from the perspective of the first impression of the consumer approaching a costly purchase when he or she encounters the essay trade?mark. The possibility that careful research could later remedy confusion does not mean that no confusion ever existed or that it would not continue to exist in the minds of qda software consumers who did not carry out that research. The trial judge’s consideration should have been limited to how a consumer, upon encountering the Alavida mark in essay the marketplace, with an imperfect recollection of the Masterpiece Inc. marks, would have reacted. In circumstances where a strong resemblance suggests a likelihood of confusion, and the other s. 6(5) factors do not point strongly against a likelihood of qda software confusion, cost is unlikely to essay about poverty lead to a different conclusion. A final issue is the role of expert evidence in the trade?mark confusion analysis. Generally, an expert should only adventitious be permitted to testify if the testimony is poverty, likely to be outside the experience and knowledge of the judge. Where the “casual consumer” is not particularly knowledgeable and there is Sense, by Thomas Paine to Any by Naomi Shihab Nye, a resemblance between the marks, expert evidence that simply assesses that resemblance will not usually be necessary. Judges should consider the essay poverty marks at issue, each as a whole, but having regard to qda software the dominant or most striking or unique feature of the trade?mark, using their own common sense, to determine whether the casual consumer would be likely to essay poverty be confused when first encountering the trade?mark. In this case, Alavida’s expert engaged in a discussion of adventitious crisis morphology and about semantics instead of considering the marks as a whole.

He also based his analysis on Alavida’s actual post?registration use, rather than the full scope of rights granted to Alavida under its registration. Masterpiece Inc.’s survey was similarly unhelpful because it attempted to simulate consumers with an definition, “imperfect recollection” when none was available. For this reason, the survey was not a valid assessment of the essay about poverty relevant question. Judges should be careful to question the necessity and relevance of such evidence, perhaps as part of a case management process, particularly in light of the Sir Arthur Conan Doyle substantial cost of evidence that may be of little utility. Considering all the circumstances of the case, and particularly the strong similarity between Alavida’s “Masterpiece Living” and Masterpiece Inc.’s “Masterpiece the Art of Living”, Masterpiece Inc. has proven that the about poverty use of qda software Alavida’s trade?mark in the same area as those of Masterpiece Inc.’s would be likely to about lead to the inference that the services associated with Masterpiece Inc.’s trade?marks were being performed by Alavida. Because Masterpiece Inc.’s use preceded Alavida’s proposed use, Alavida was not entitled under s. 16(3) to registration of its trade?mark and it should be expunged from the register. Applied: Mattel, Inc. v. 3894207 Canada Inc. , 2006 SCC 22, [2006] 1 S.C.R. 772; Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltee , 2006 SCC 23, [2006] 1 S.C.R.

824; Housen v. Adventitious. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235; Hollis v. Dow Corning Corp. , [1995] 4 S.C.R. 634; considered: R. v. Mohan , [1994] 2 S.C.R. 9; Ultravite Laboratories Ltd. v. Whitehall Laboratories Ltd. , [1965] S.C.R. 734; esure Insurance Ltd. v. Essay. Direct Line Insurance plc , 2008 EWCA Civ 842, [2008] R.P.C. 34; General Electric Co. Literary. v. The General Electric Co. Ltd. , [1972] All E.R. 507; referred to: Partlo v. Todd (1888), 17 S.C.R.

196; Benson Hedges (Canada) Ltd. Essay About Poverty. v. St. Regis Tobacco Corp. , [1969] S.C.R. 192; Leaf Confections Ltd. v. Maple Leaf Gardens Ltd . Behavior. (1986), 12 C.P.R. (3d) 511, aff’d (1988), 19 C.P.R. Poverty. (3d) 331; Mr. Submarine Ltd. v. Amandista Investments Ltd. , [1988] 3 F.C. 91; Conde Nast Publications Inc. v. Union des editions modernes (1979), 46 C.P.R. (2d) 183; General Motors Corp. v. Bellows , [1949] S.C.R.

678. Statutes and wheatley Regulations Cited. Trade-marks Regulations , SOR/96?195 . Gill, Kelly, and R. Scott Jolliffe. Fox on Canadian Law of Trade?marks and about poverty Unfair Competition , 4th ed. Modernism Literary. Toronto: Carswell, 2002 (loose-leaf updated 2006, release 2). Hughes, Roger T., and Toni Polson Ashton. About. Hughes on Trade Marks , 2nd ed. Adventitious Crisis. Markham, Ont.: LexisNexis, 2005 (loose?leaf updated 2010, release 22). Shorter Oxford English Dictionary on Historical Principles , 5th ed. Oxford: Oxford University Press, 2002, “resemblance”.

Vaver, David. Intellectual Property Law: Copyright, Patents, Trade?marks , 2nd ed. Toronto, Ont.: Irwin Law, 2011. APPEAL from a judgment of the Federal Court of Appeal ( Sexton, Layden?Stevenson and about Trudel, JJ.A.), 2009 FCA 290, [2010] 4 F.C.R. 243, 397 N.R. 180, 78 C.P.R. (4th) 243, 312 D.L.R. (4th) 532, [2009] F.C.J. No.

1263 (QL), 2009 CarswellNat 3122, affirming a decision of qda software O’Reilly J., 2008 FC 1412, 338 F.T.R. 168, 72 C.P.R. (4th) 160, [2008] F.C.J. No. 1826 (QL), 2008 CarswellNat 4970. Appeal allowed. W. Clarke Hunter , Q.C. Essay About. , Kelly Gill and Brandon Potter , for the appellant. Scott Miller , Sharon Griffin and Heather Gallant , for the respondent. Daniel R. Bereskin , Q.C. , and Mark L. Robbins , for the intervener.

The judgment of the Court was delivered by. [1] Trade-marks in Canada are an important tool to assist consumers and behavior businesses. In the marketplace, a business marks its wares or services as an indication of provenance. This allows consumers to poverty know, when they are considering a purchase, who stands behind those goods or services. In this way, trade-marks provide a “shortcut to get consumers to where they want to go”, per Binnie J. in Mattel, Inc. v. 3894207 Canada Inc. , 2006 SCC 22, [2006] 1 S.C.R. 772, at para. 21. Consumer. Where the trade-marks of different businesses are similar, a consumer may be unable to discern which company stands behind the wares or services. Confusion between trade-marks impairs the objective of providing consumers with a reliable indication of the expected source of wares or services.

This case provides this Court with the opportunity of reviewing the basic approach and criteria applicable to a confusion analysis between competing trade-marks under the essay about Trade-marks Act , R.S.C. 1985, c. T-13 (“Act ”). [2] The question in this case is whether the trade-mark “Masterpiece Living”, proposed and subsequently registered by Alavida Lifestyles Inc. (“Alavida”), a company entering the retirement residence industry in Ontario, was then confusing with the unregistered trade-marks or trade-name previously used by another company, Masterpiece Inc., in the retirement residence industry in qda software Alberta. [3] Masterpiece Inc. contends that Alavida’s trade-mark, on the date its application for registration was filed with the Canadian Intellectual Property Office, December 1, 2005, was confusing with Masterpiece Inc.’s trade-name and trade-marks. It argues that Alavida was not entitled to apply for registration of its mark because of its confusing similarity to Masterpiece Inc.’s trade-name and poverty trade-marks, which were used prior to Alavida’s application. Consumer Behavior Analysis. Thus, it argues, the essay about registration is invalid and should be expunged. [4] Masterpiece Inc. was unsuccessful in the Federal Court (2008 FC 1412, 72 C.P.R. (4th) 160) and Federal Court of Appeal (2009 FCA 290, [2010] 4 F.C.R. 423) and now appeals to this Court. [5] I am of the respectful opinion that the learned trial judge and the Federal Court of Appeal in this case did not interpret and apply the criteria for determining confusion correctly.

Upon a correct interpretation and application, I conclude that Alavida’s proposed trade-mark “Masterpiece Living” was confusing with at Conan Doyle Essays least one of Masterpiece Inc.’s trade-marks when the registration application was filed on essay about poverty, December 1, 2005. Therefore, Alavida was not entitled to registration of qda software its proposed mark. Because I have found confusion between one of poverty Masterpiece Inc.’s trade-marks and Alavida’s mark, it is not necessary to perform a confusion analysis between the other of Masterpiece Inc.’s trade-marks and its trade-name with Alavida’s mark. I would allow the appeal and order the Registrar of Trade-marks to expunge Alavida’s registration from the register of trade-marks. [6] I should make clear that this decision deals only with the question of expungement of Alavida’s trade-mark registration for “Masterpiece Living”. Whether Masterpiece Inc. may register a trade-mark that comprises or includes the word “Masterpiece” will now be a matter for Masterpiece Inc. and the Registrar. [7] Both Masterpiece Inc. and Alavida operate in the retirement residence industry. Prior to December 2005, Masterpiece Inc. used several trade-marks which included the word “Masterpiece”, as well as its trade-name “Masterpiece Inc.”. Alavida entered the market near the end of 2005 and of phillis applied to register the about trade-mark “Masterpiece Living” to market its services. [8] Masterpiece Inc. was incorporated in 2001.

In the years between 2001 and poetry of phillis wheatley 2005, it undertook two retirement residence construction and operation projects in Alberta and essay poverty began a third. During this time, it used its corporate name, Masterpiece Inc., as a trade-name on materials including prospectuses, contracts and advertisements. [9] Concurrently, Masterpiece Inc. used several unregistered trade-marks which involved the word “Masterpiece” including “Masterpiece the Art of Living”, “Masterpiece the adventitious Art of poverty Retirement Living”, and a stylized word “Masterpiece” alongside a butterfly logo. It also used other marks, including the trade-mark “Club Sierra”, in its advertisements. [10] Alavida, a subsidiary of Ashcroft Homes Inc., was incorporated on August 4, 2005. It applied to register the consumer behavior trade-mark “Masterpiece Living” on December 1, 2005, on the basis of a proposed use. The mark was registered unopposed on March 23, 2007.

Since January 2006, Alavida has used “Masterpiece Living” as its trade-mark. [11] Shortly after Alavida’s application, Masterpiece Inc. changed its branding slightly, and began using the very same trade-mark “Masterpiece Living”. Essay. The result of these almost simultaneous decisions was that, beginning in 2006, there were two Canadian companies, one operating in Alberta, another in Ontario, using the trade-mark “Masterpiece Living” in the retirement residence industry. [12] In January 2006, Masterpiece Inc. applied to register “Masterpiece” as a trade-mark, and in June 2006, it applied to register the trade-mark “Masterpiece Living”. As a result of Alavida’s prior application, which was eventually granted, Masterpiece Inc.’s applications for both the trade-mark “Masterpiece Living” and the trade-mark “Masterpiece” were denied, as the Registrar concluded that they were confusing with Alavida’s trade-mark “Masterpiece Living”. [13] On March 16, 2007, Masterpiece Inc. commenced this application to expunge Alavida’s registration. It appears that Masterpiece Inc. did not oppose Alavida’s application. However, it was not argued that its failure to do so had any impact on the expungement proceedings. III. Federal Court.

[14] O’Reilly J. dismissed Masterpiece Inc.’s application to adventitious expunge the Alavida trade-mark. [15] He found that if Alavida’s trade-mark was confusingly similar to about poverty any trade-marks or trade-names that had previously been used, Alavida would not be entitled to the registration. He held that when considering whether a confusing mark was used prior to an application, “the relevant date is the date of filing of the application” (para. 9). [16] The trial judge found that Masterpiece Inc. had shown “ some use” of the trade-name “Masterpiece” and related marks including the qda software word “Masterpiece” prior to Alavida’s application (at para. 19 (emphasis in original)), although he found the use was rather sporadic. He then considered whether there was a likelihood of confusion, under s. 6(5) of the Act , between Alavida’s trade-mark and these prior marks on the date of filing of essay about poverty Alavida’s application for registration. [17] In conducting the confusion analysis under s. 6(5) of the Act , he found that the word “Masterpiece” in association with retirement residences or services was somewhat inherently distinctive (para. 41), but that there had been no acquired distinctiveness through use in any of Masterpiece Inc.’s marks on the relevant date (para.

42). On the issue of the resemblance between the marks, the trial judge accepted observations made by one of Sir Arthur Essays Alavida’s experts that Alavida’s post-registration use of its marks differed from Masterpiece Inc.’s use of its marks, both in essay poverty design and in the focus of the advertisements. He found that although there was “obviously a degree of resemblance” as between the two companies’ marks, these differences in adventitious use served to reduce the likelihood of confusion (para. 46). He also observed that the choice of retirement residence was an important and expensive decision. As a result, consumers could be expected to research their decisions carefully, which would also reduce the likelihood of confusion. [18] On the basis of these considerations, he concluded that Masterpiece Inc. Essay About. had not established that there was a likelihood of confusion between its trade-name and trade-marks and Alavida’s registered trade-mark. IV.

Federal Court of Appeal. [19] At the Federal Court of crisis Appeal, Sexton and Trudel JJ.A., writing for the court, dismissed Masterpiece Inc.’s appeal. [20] The Court of Appeal upheld the essay about findings of the trial judge that the relevant date for the confusion analysis was the date of filing of Alavida’s trade-mark application, December 1, 2005. This finding was then applied to reject evidence presented by Masterpiece Inc. that by December 1, 2005, it had unexecuted plans to expand into Sir Arthur Conan Essays the central Canadian market. The court found that the possibility of future confusion was not relevant to poverty the assessment of confusion under the Act , and therefore Masterpiece Inc.’s intention to expand its operations into new markets was irrelevant. It stated, at para. 22: At the date of filing of the respondent’s trade-mark, the appellant did not sell its product in the same market as the respondent. This Court need not consider the crisis appellant’s plans for expansion after that date. [21] The balance of the essay about Court of Appeal reasons also generally agreed with the trial judge’s approach to the confusion analysis, and found no palpable and overriding errors in modernism definition his consideration of the evidence. Thus, it held that Alavida’s registration should be maintained and dismissed Masterpiece Inc.’s appeal.

V. Issues on Appeal. [22] There are four issues for consideration by this Court: 1. Is the location where a mark is used relevant when considering the likelihood of confusion between an applied for or registered trade-mark and a prior unregistered trade-mark or trade-name? 2. What considerations are applicable in the assessment of the resemblance between a proposed use trade-mark and an existing unregistered trade-mark? 3. When considering the “nature of the trade” under s. 6(5) of the Act , what effect does the nature and cost of the wares or services have on the confusion analysis? 4. When should courts take into account expert evidence in trade-mark or trade-name confusion cases?

[23] Sections of the essay about poverty Act relevant to this appeal are reproduced in crisis the Appendix at the conclusion of these reasons. A. Is the essay about Location Where a Mark Is Used Relevant When Considering the Likelihood of Confusion Between an Applied for poetry wheatley or Registered Trade-Mark and a Prior Unregistered Trade-Mark or Trade-Name? [24] In the Federal Court of Appeal, a major focus in the reasons was whether Masterpiece Inc.’s plan to poverty expand into eastern Canada, which could lead it into direct competition with Alavida, was relevant to modernism literary the determination of confusion. Poverty. While those plans have now been executed, and Masterpiece Inc. is operating in the retirement residence industry in Quebec, on December 1, 2005, they were merely plans. [25] The Federal Court of Appeal concluded that these plans were not relevant. However, in doing so, it distinguished several authorities which Masterpiece Inc. submitted to support the relevance of its plans. Qda Software. Some of about poverty these authorities suggested that the geographical location where two trade-marks are used or proposed to be used does not affect the likelihood of confusion. [26] Distinguishing these authorities could be seen as an acceptance that the geographical locale in consumer analysis which marks are used or proposed to be used is relevant for determining whether there is a likelihood of confusion. Indeed, in this Court, there was an intervention by the International Trademark Association which sought to address only essay about poverty this point. Poetry Of Phillis Wheatley. If it were true that geography was relevant, then Alavida could claim that there was no confusion between its marks and Masterpiece Inc.’s marks because on December 1, 2005, Masterpiece Inc. was only operating in Alberta, while it was operating in Ontario. [27] While it is not entirely clear that the Federal Court of about Appeal’s reasons should be read as suggesting that geography is relevant, I would take this opportunity to dispel any doubt on this point.

[28] The Canadian trade-marks regime is national in scope. Crisis. The owner of a registered trade-mark, subject to a finding of essay about invalidity, is Sir Arthur, entitled to the exclusive use of that mark in association with the wares or services to about which it is connected throughout Canada. Section 19 of the Trade-marks Act provides: 19. Subject to poetry wheatley sections 21 , 32 and 67 , the registration of a trade-mark in about poverty respect of any wares or services, unless shown to be invalid, gives to the owner of the trade-mark the exclusive right to the use throughout Canada of the trade-mark in respect of those wares or services. [29] With respect to confusion, ss. 6(1) and (2) of the Trade-marks Act provide: 6. (1) For the purposes of this Act , a trade-mark or trade-name is confusing with another trade-mark or trade-name if the use of the first mentioned trade-mark or trade-name would cause confusion with the last mentioned trade-mark or trade-name in crisis the manner and circumstances described in this section. (2) The use of a trade-mark causes confusion with another trade-mark if the use of essay poverty both trade-marks in the same area would be likely to lead to the inference that the adventitious wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the about same general class. Section 6(3) deals with trade-mark confusion with a trade-name and 6(4) with trade-name confusion with a trade-mark.

In subsections (2), (3) and (4), the same formula is used “ if the use of both . . . in the same area would be likely to lead to the inference”. [30] It is immediately apparent from these words, “if the use of both . . . in Sense, Would-Be Terrorists, by Naomi Nye the same area”, that the test for about confusion is based upon the hypothetical assumption that both trade-names and trade-marks are used “in the same area”, irrespective of adventitious crisis whether this is essay, actually the Common Sense, Paine and Letter Would-Be Shihab case. As a result, geographical separation in the use of otherwise confusingly similar trade-names and trade-marks does not play a role in this hypothetical test. This must be the essay case, because, pursuant to s. 19 , subject to exceptions not relevant here, registration gives the owner the exclusive right to the use of the trade-mark throughout Canada. [31] In order for the owner of Sense, by Thomas to Any Would-Be Terrorists, by Naomi Nye a registered trade-mark to have exclusive use of the about poverty trade-mark throughout Canada, there cannot be a likelihood of confusion with another trade-mark anywhere in the country. [32] Section 16(3) confirms this conclusion, stating that an applicant for a proposed mark will be entitled to registration unless at the date of filing the trade-mark it is confusing with a trade-mark or trade-name that had been previously used in Sir Arthur Conan Canada. Essay About. Section 16(3) provides: (3) Any applicant who has filed an Sir Arthur Conan Doyle, application in accordance with section 30 for about registration of a proposed trade-mark that is registrable is entitled , subject to sections 38 and 40 , to poetry of phillis wheatley secure its registration in respect of the wares or services specified in the application, unless at the date of filing of the application it was confusing with. ( a ) a trade-mark that had been previously used in essay about Canada or made known in Canada by any other person; ( b ) a trade-mark in respect of which an application for registration had been previously filed in Canada by analysis, any other person; or. ( c ) a trade-name that had been previously used in Canada by any other person. [33] Whether in assessing trade-mark infringement under s. 19 or entitlement under s. Essay. 16, the test for likelihood of confusion is the same.

The application of the hypothetical test reflects the legislative intent to provide a national scope of protection for registered trade-marks in Canada (see D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 536). B. What Considerations Are Applicable in the Assessment of the Common Sense, Paine to Any Terrorists, Nye Resemblance Between a Proposed Use Trade-Mark and an Existing Unregistered Trade-Mark? [34] To clarify the proper approach to assessing the resemblance between a proposed use trade-mark and existing unregistered marks, it will be useful to address a number of issues: (1) the relationship between use and registration; (2) the test for confusion; (3) the necessity to consider each mark separately; (4) the approach to essay poverty testing for resemblance; (5) the necessity to consider the proposed use trade-mark according to its terms, rather than by its actual use; (6) the consumer requirement to assess the unregistered marks according to their actual use; and. (7) the resemblance between the essay about trade-marks in issue.

While these issues are relevant in this case, they are not intended to be an exhaustive list of all considerations that are relevant in assessing resemblance. (1) The Relationship Between Use and Registration. [35] At the Sir Arthur Doyle Essays outset, it is important to recall the essay relationship between use and registration of a trade-mark. Registration itself does not confer priority of title to a trade-mark. At common law, it was use of a trade-mark that conferred the exclusive right to the trade-mark. Adventitious Crisis. While the Trade-marks Act provides additional rights to a registered trade-mark holder than were available at common law, registration is only available once the right to the trade-mark has been established by use.

As explained by Ritchie C.J. in Partlo v. Todd (1888), 17 S.C.R. 196, at p. 200: It is not the registration that makes the party proprietor of a trade-mark; he must be proprietor before he can register . . Essay Poverty. . . [36] That principle established under Canada’s early trade-mark legislation continues under the present Act . Rights arising from by Thomas Paine to Any Would-Be Terrorists, by Naomi Nye, use have been incorporated into the Act by granting rights to the first user of a trade-mark in two ways. First, under s. Poverty. 16 , a party normally gains a priority right to register a trade-mark when it first uses that trade-mark. Second, a user is also able to oppose applications or apply to expunge registrations based on its earlier use of a confusing trade-mark. This explains why an unregistered trade-mark of Masterpiece Inc. can be the basis of a challenge to Alavida’s subsequent registration application.

Section 16(3) of the Act recognizes the right of definition a prior user against any application for about registration based upon subsequent use. Section 17(1) preserves that right, subject to certain limitations that are of no relevance here, where the trade-mark has been registered. [37] It should also be explained why Alavida’s application for modernism literary a proposed trade-mark on December 1, 2005, would preclude Masterpiece Inc.’s subsequent trade-mark applications based on actual use. As noted above, at common law, trade-mark protection only arose from actual use. About Poverty. However, under the current Trade-marks Act , the opportunity was created for Conan Doyle an applicant to claim priority as of the date the applicant files for a proposed but yet unused trade-mark. Registration will, however, not occur unless the applicant subsequently provides a declaration demonstrating that the proposed trade-mark was actually used within the time specified in s. 40(2) of the essay about poverty Act . [38] In this case, Alavida did provide such a declaration, with the result that its priority claim as of December 1, 2005, the date it filed its registration application, precluded Masterpiece Inc. from obtaining registration of “Masterpiece Living”, the exact same trade-mark as Alavida, by a subsequent application based on use after December 1, 2005. Instead, it would have had to oppose Alavida’s application or would have to apply to expunge Alavida’s trade-mark registration on the grounds of poetry likelihood of confusion between Alavida’s trade-mark and its trade-marks or trade-name that had been in use before December 1, 2005. Because Masterpiece Inc. did not oppose Alavida’s application, which was granted, the only remedy open to Masterpiece Inc. was to apply to have Alavida’s mark expunged. If successful, this remedy would allow Masterpiece Inc.’s application for registration of its own trade-marks to be considered on its merits by the Registrar of Trade-marks. (2) The Test for Confusion.

[39] The question at the centre of this case is whether there was confusion between Alavida’s and essay poverty Masterpiece Inc.’s trade-marks or trade-name in terms of s. 6 of the modernism literary Act . About Poverty. In my respectful opinion, the learned trial judge erred in law when conducting the confusion analysis, and thereby erred in his conclusion that Masterpiece Inc. had not established confusion between its trade-name and trade-marks and Alavida’s now registered trade-mark. [40] At the outset of this confusion analysis, it is useful to bear in mind the test for confusion under the Trade-marks Act . In Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltee , 2006 SCC 23, [2006] 1 S.C.R. 824, Binnie J. restated the traditional approach, at para. 20, in the following words: The test to be applied is a matter of first impression in the mind of Common by Thomas and Letter to Any Would-Be Shihab Nye a casual consumer somewhat in a hurry who sees the [mark], at a time when he or she has no more than an imperfect recollection of the [prior] trade-marks, and essay does not pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the Common by Thomas to Any Would-Be by Naomi marks. Binnie J. referred with approval to the words of Pigeon J. in Benson Hedges (Canada) Ltd. v. St. Regis Tobacco Corp. , [1969] S.C.R. 192, at p. 202, to contrast with what is not to be done — a careful examination of competing marks or a side by side comparison. [41] In this case, the question is whether, as a matter of essay first impression, the “casual consumer somewhat in a hurry” who sees the poetry of phillis wheatley Alavida trade-mark, when that consumer has no more than an imperfect recollection of any one of the Masterpiece Inc. trade-marks or trade-name, would be likely to be confused; that is, that this consumer would be likely to essay about poverty think that Alavida was the same source of retirement residence services as Masterpiece Inc.

(3) The Necessity to Consider Each Mark Separately. [42] As noted above, the Sense, Paine and Letter to Any Terrorists, by Naomi basis for Masterpiece Inc.’s claim under s. 16(3) of the Act is that the trade-mark for which Alavida applied was confusing with any trade-mark or the trade-name it had used prior to December 1, 2005. [43] Under s. About Poverty. 16(3), even one confusingly similar trade-mark or trade-name will invalidate Alavida’s registration. In pleading several potentially confusingly similar trade-marks and trade-names, Masterpiece Inc. Modernism Literary Definition. presented several distinct bases for about poverty an invalidation of Alavida’s registration. [44] Section 6(5) of the Act sets out the required approach to a confusion analysis. All surrounding circumstances must be considered including: ( a ) the qda software inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known; ( b ) the essay poverty length of modernism definition time the essay poverty trade-marks or trade-names have been in use; ( c ) the nature of the wares, services or business; ( d ) the nature of the modernism definition trade; and. ( e ) the degree of essay about resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them. [45] Some of the s. 6(5) factors that guide the confusion analysis will be the same for each of the trade-marks and trade-name in this case. For example, all of the evidence suggests that Masterpiece Inc. only engaged in the retirement residence industry and used all of consumer analysis its marks in relation to that industry.

In others, each mark will have to be considered separately. For example, because the essay poverty Masterpiece Inc. Adventitious. trade-marks are different in content from one another, and are different from the trade-name, it will be necessary to consider the similarity of Alavida’s proposed trade-mark, “Masterpiece Living”, to each of the trade-marks and trade-name for which Masterpiece Inc. has established use. [46] The trial judge found that Masterpiece Inc. demonstrated that it had used the trade-name “Masterpiece” and the trade-marks “Masterpiece the Art of Retirement Living” and “Masterpiece the Art of essay poverty Living”. Alavida’s application for registration was for the trade-mark “Masterpiece Living”. It was therefore necessary to compare Alavida’s “Masterpiece Living” with each of Masterpiece Inc.’s trade-marks and poetry wheatley trade-name separately. [47] However, instead of undertaking a separate resemblance analysis comparing each of Masterpiece Inc.’s marks and trade-name with Alavida’s mark, the trial judge undertook a single composite analysis. Essay About Poverty. He only qda software considered the issue of resemblance between “Masterpiece Living” and all of essay about poverty Masterpiece Inc.’s trade-marks and adventitious crisis trade-name generally. At para.

46, he stated: There is obviously a degree of resemblance as between Masterpiece Inc.’s trade-name and marks and Alavida’s registered mark for essay poverty “Masterpiece Living”. However, as part of the overall circumstances, I note that Alavida’s use of “Masterpiece Living” has been in the nature of a slogan accompanying its corporate identity. By contrast, Masterpiece Inc. uses “Masterpiece” to Sir Arthur Doyle Essays identify the company itself, along with various other words and essay about poverty phrases of far lesser prominence, alongside a distinctive butterfly logo. These differences help reduce the likelihood of confusion. [Emphasis added.] [48] However, under ss.

16(3) ( a ) and ( c ) of the Act , Masterpiece Inc. was entitled to assert, and have considered, any of the modernism literary definition marks or trade-name that it had used prior to December 1, 2005, as a basis to challenge Alavida’s application for essay about poverty registration. In my opinion, the trial judge erred in not conducting the separate analysis required by the Act . Some of the expert evidence which treated Masterpiece Inc.’s trade-marks and trade-name as a whole instead of literary one by one (see, e.g., paras. 21-23 and 36), may have contributed to this error. (4) The Approach to Testing for Resemblance. [49] In applying the s. 6(5) factors to the question of confusion, the essay about trial judge conducted his analysis in the order of the criteria set forth in s. 6(5) , concluding with a consideration of the consumer behavior resemblance between the marks. While it is no error of essay about law to do so, the degree of resemblance, although the last factor listed in s. 6(5) , is the statutory factor that is often likely to have the greatest effect on the confusion analysis (K. Gill and R. Doyle. S. About Poverty. Jolliffe, Fox on adventitious, Canadian Law of Trade-marks and Unfair Competition (4th ed. (loose-leaf)), at essay poverty p. Behavior. 8-54; R. T. Hughes and about T. P. Ashton, Hughes on Trade Marks (2nd ed. (loose-leaf)), at §74, p. 939). As Professor Vaver points out, if the marks or names do not resemble one another, it is unlikely that even a strong finding on the remaining factors would lead to a likelihood of confusion. The other factors become significant only once the marks are found to be identical or very similar (Vaver, at p. 532). As a result, it has been suggested that a consideration of resemblance is where most confusion analyses should start ( ibid. ). [50] I will therefore first review the trial judge’s consideration of the degree of resemblance of the marks. (5) The Necessity to Consider the Proposed Use Trade-Mark According to Its Terms, Rather Than by Its Actual Use.

[51] In his analysis, the trial judge found that there was “obviously a degree of resemblance as between Masterpiece Inc.’s trade-name and marks and Alavida’s registered mark” (para. 46). [52] It is clear from the trial judge’s reasons that he took into account Alavida’s actual use of its mark in comparing the Alavida and Masterpiece Inc. marks. For convenience, I repeat a portion of para. 46 of his reasons: However, as part of the overall circumstances, I note that Alavida’s use of “Masterpiece Living” has been in the nature of Conan Doyle Essays a slogan accompanying its corporate identity. [53] In my opinion, the trial judge’s consideration of Alavida’s actual use of its mark was problematic.

The difficulty is that it takes into account a single form of the trade-mark that Alavida used after the poverty relevant date. Poetry Of Phillis Wheatley. This single use did not reflect the essay about entire scope of exclusive rights that were granted to Alavida under its registration. As found by Binnie J. in Mattel , at para. 53: The appellant argued that the courts below erred in looking at poetry wheatley the respondent’s actual operations rather than at the terms set out in its application for the proposed trade-mark. It is quite true that the proper focus is the terms of the application, because what is at issue is what the registration would authorize the about poverty respondent to do, not what the respondent happens to be doing at the moment. [54] Alavida’s registration process began on December 1, 2005, with an application based on proposed use. At s. 30, the Act sets out what must be included in an application for registration. When submitting the application, an applicant is required to provide a formulation of wheatley its trade-mark in addition to various other pieces of information.

The trade-mark on an application may simply be a word mark, or it may be a design, or it may be a word mark and design (for example, see the marks in Leaf Confections Ltd. v. Maple Leaf Gardens Ltd . (1986), 12 C.P.R. (3d) 511 (F.C.T.D.), aff’d (1988), 19 C.P.R. (3d) 331 (F.C.A.)). The application may identify the essay poverty mark as being used only adventitious crisis with particular colours: Trade-marks Regulations , SOR/96-195. An application may also contain disclaimers, or an applicant may be required by the Registrar to include disclaimers, to essay poverty limit the Essays scope of trade-mark rights: s. 35 of the Act . [55] In this case, Alavida’s registration (TMA 684,557) identifies the trade-mark that Alavida applied for and was subsequently registered — the words “Masterpiece Living”. This trade-mark is identified only in a textual form. It would therefore permit Alavida to use the words “Masterpiece Living” in any size and essay poverty with any style of lettering, color or design.

As found by the Federal Court of Appeal in Mr. Submarine Ltd. v. Amandista Investments Ltd. , [1988] 3 F.C. 91: Nothing restricts the appellant from changing the colour of its signs or the style of lettering of “Mr. Submarine” or from engaging in a telephone and delivery system such as that followed by the respondent or any other suitable system for the sale of its sandwiches. Crisis. Were it to make any of these changes its exclusive right to the use of “Mr. Submarine” would apply just as it applies to its use in the appellant’s business as presently carried on. Whether the respondent’s trade marks or trade names are confusing with the appellant’s registered trade mark must accordingly be considered not only having regard to the appellant’s present business in the area of the respondent’s operations but having regard as well to whether confusion would be likely if the appellant were to operate in that area in any way open to essay poverty it using its trade mark in association with the sandwiches or services sold or provided in the operation. Common By Thomas And Letter To Any Would-Be Terrorists, Shihab. [Emphasis added; pp. 102-3.] [56] When engaging in a confusion analysis, it is important to keep in mind that the exclusive rights granted by the Act refer to essay poverty a registered trade-mark (ss.

19 , 20 and qda software 21 ). About Poverty. Where a court is called upon to decide if there is a likelihood of confusion between that registered trade-mark and any registered or previously used unregistered trade-marks, the analysis should address the modernism literary definition proposed trade-mark for which the essay registration was ultimately obtained. [57] If the trial judge had recognized that it was open to Alavida to Sir Arthur use its trade-mark in any way within the essay scope of its registration, he would have had to conclude that the actual use by Alavida did not limit Alavida’s rights. Alavida was entitled to use the modernism words in any form. [58] The problem with an analysis which takes into account limited use becomes apparent by observing that the bare words “Masterpiece Living” could be presented in many ways under the registration. Nothing would prevent Alavida from altering its advertising to highlight the word “Masterpiece” and give the essay poverty word “Living” less prominence, just as Masterpiece Inc. had done, or from consumer analysis, changing the font or style of essay about poverty lettering that it had used. [59] For this reason, it was incorrect in law to limit consideration to Alavida’s post-application use of its trade-mark to find a reduced likelihood of confusion. Actual use is not irrelevant, but it should not be considered to the exclusion of potential uses within the modernism registration. For example, a subsequent use that is essay about poverty, within the scope of a registration, and is the same or very similar to an existing mark will show how that registered mark may be used in a way that is confusing with an existing mark.

(6) The Requirement to Assess the Unregistered Marks According to Their Actual Use. [60] As for adventitious Masterpiece Inc., because its trade-marks were unregistered on December 1, 2005, it may only essay about poverty rely on those trade-marks that it had actually used and the trade-name under which it had been carrying on business, and Common by Thomas and Letter to Any Would-Be Nye which had not been abandoned up to that date (see s. Essay. 17(1)). There is Common Sense, and Letter to Any Terrorists, by Naomi, no suggestion of abandonment in this case (transcript, at p. 17, lines 8-12). (7) The Resemblance Between the Trade-Marks in about poverty Issue. [61] In a case such as this, comparison can be approached by considering only those characteristics that define the relevant trade-marks or trade-name.

It is only these elements that will allow consumers to distinguish between the two trade-marks or between the trade-mark and the trade-name. Here, because Alavida’s proposed trade-mark is only the words “Masterpiece Living”, the adventitious difference between or similarity with each of Masterpiece Inc.’s trade-marks and trade-name must be assessed only on the basis of these words alone. In my opinion, Alavida’s “Masterpiece Living” is closest to Masterpiece Inc.’s “Masterpiece the Art of Living”. I think that comparing this Masterpiece Inc. trade-mark with the Alavida trade-mark is decisive. If Alavida’s mark is not likely to cause confusion with this Masterpiece Inc. Essay About. mark, it is unnecessary to consider the other Masterpiece Inc. marks and trade-name which are less similar to the Alavida trade-mark. Conversely, if Alavida’s trade-mark is found to be likely to cause confusion with this Masterpiece Inc. mark, it is unnecessary to test resemblance of its trade-mark with other Masterpiece Inc. trade-marks or its trade-name, although they may be relevant as part of the surrounding circumstances when likely confusion with the “Masterpiece the Art of Living” trade-mark is considered. [62] Resemblance is defined as the quality of being either like or similar; see Shorter Oxford English Dictionary on Historical Principles (5th ed. 2002), at p. 2544, under the definition of “resemblance”.

The term “degree of resemblance” in s. Qda Software. 6(5) ( e ) of the Act implies that likelihood of confusion does not arise solely from essay about poverty, identical trade-marks. “[D]egree of resemblance” recognizes that marks with some differences may still result in likely confusion. [63] The first word in both Alavida’s and Masterpiece Inc.’s trade-marks is the identical word “Masterpiece”. It has been held that for purposes of distinctiveness, the first word is crisis, important (see Conde Nast Publications Inc. v. Union des editions modernes (1979), 46 C.P.R. (2d) 183 (F.C.T.D.), at p. Essay About. 188, per poetry of phillis wheatley Cattanach J.). [64] While the first word may, for purposes of distinctiveness, be the most important in some cases, I think a preferable approach is to first consider whether there is an aspect of the trade-mark that is particularly striking or unique. Essay. Here there is nothing striking or unique about the Conan Essays word “Living” or the words “the Art of Living”. Essay About. “Masterpiece” is the word that distinguishes Alavida and qda software Masterpiece Inc. from other sources of retirement residence services. It is a reasonable conclusion that “Masterpiece” is the dominant word in these trade-marks, and it is obviously identical as between Alavida and Masterpiece Inc.

By the same token, in the context of the retirement residence industry, the idea evoked by the word “Masterpiece”, high quality retirement lifestyle, is the same for both Alavida and Masterpiece Inc. Finally, the word “Living” is identical as between the Alavida and essay Masterpiece Inc. trade-marks. [65] Given these striking similarities, it is, in my respectful view, very difficult not to find a strong resemblance as a whole between the two, Masterpiece Inc.’s trade-marks and Alavida’s trade-mark. C. When Considering the “Nature of the Trade” Under Section 6(5) of the Act , What Effect Does the adventitious crisis Nature and Cost of the Wares or Services Have on the Confusion Analysis? [66] A further difficulty is the essay trial judge’s consideration of the cost associated with a retirement residence. He found that consumers in Doyle Essays the market for a retirement residence will take more care and ultimately will be less likely to be led astray by essay poverty, confusing trade-marks than if they were in the market for less expensive wares or services. In taking into account both the literary nature of the parties’ business under s. 6(5)( c ) and essay poverty the “nature of the trade” under s. 6(5)( d ), the literary trial judge wrote: Turning to the nature of the business, both companies operate in the area of expensive retirement residences and services.

People take considerable care in choosing a residence and about poverty selecting the company that will provide it. In these circumstances, consumers can be presumed to be less susceptible to confusion about the source of the goods or services they are seeking because they are unlikely to make choices based on first impressions. They will generally take considerable time to inform themselves about the poetry of phillis wheatley source of expensive goods and about services ( General Motors Corp. v. Bellows , [1949] S.C.R. 678). [Emphasis added; para. 43.] [67] This Court has affirmed that consumers in the market for expensive goods may be less likely to be confused when they encounter a trade-mark, but the test is still one of “first impression”. In his reasons, the trial judge used the importance and cost of expensive goods and services to change the crisis likelihood of confusion test from one of first impression of a trade-mark to a test of consumers being “unlikely to make choices based on first impressions”. This approach is not consistent with the test for confusion under s. 6(5) which has been consistently endorsed by this Court, most recently in Veuve Clicquot . [68] While the poverty hypothetical test for adventitious likelihood of confusion must be applied in all situations, it is flexible enough to reflect the observation of Binnie J. in Mattel , at poverty para. 58: When buying a car or a refrigerator, more care will naturally be taken than when buying a doll or a mid-priced meal . . . . [69] However, as one element of the broader hypothetical test, this care or attention must relate to poetry of phillis the attitude of the consumer approaching an important or costly purchase when he or she encounters the essay about trade-mark, not to the research or inquiries or care that may subsequently be taken. As Rand J. put it in General Motors Corp. v. Bellows , [1949] S.C.R. 678, at p. 692:

Do the words then in adventitious crisis that situation [refrigerators] lend themselves to about poverty the errors of faint impression or recollection of the average person who goes to their market ? [Emphasis added.] [70] The focus of this question is the attitude of a consumer in qda software the marketplace. About. Properly framed, consideration of the nature of the wares, services or business should take into account that there may be a lesser likelihood of trade-mark confusion where consumers are in poetry the market for expensive or important wares or services. Essay About Poverty. The reduced likelihood of confusion is adventitious, still premised on the first impression of essay about poverty consumers when they encounter the marks in question. Where they are shopping for expensive wares or services, a consumer, while still having an imperfect recollection of a prior trade-mark, is likely to be somewhat more alert and aware of the trade-mark associated with the wares or services they are examining and consumer analysis its similarity or difference with that of the prior trade-mark. A trade-mark, as Binnie J. observed in poverty Mattel , is a shortcut for consumers. That observation applies whether they are shopping for more or less expensive wares or services. [71] It is not relevant that, as the trial judge found, consumers are “unlikely to make choices based on first impressions” or that they “will generally take considerable time to inform themselves about the source of expensive goods and services” (para. Adventitious Crisis. 43).

Both of these — subsequent research or consequent purchase — occur after the consumer encounters a mark in the marketplace. [72] This distinction is important because even with this increased attentiveness, it may still be likely that a consumer shopping for expensive goods and about poverty services will be confused by the trade-marks they encounter. Careful research and behavior deliberation may dispel any trade-mark confusion that may have arisen. However, that cannot mean that consumers of expensive goods, through their own caution and wariness, should lose the benefit of trade-mark protection. It is confusion when they encounter the trade-marks that is poverty, relevant. Qda Software. Careful research which may later remedy confusion does not mean that no confusion ever existed or that it will not continue to exist in the minds of consumers who did not carry out that research. [73] Indeed, before source confusion is remedied, it may lead a consumer to seek out, consider or purchase the wares or services from a source they previously had no awareness of or interest in. Such diversion diminishes the value of the goodwill associated with the trade-mark and business the consumer initially thought he or she was encountering in essay about seeing the trade-mark.

Leading consumers astray in this way is one of the evils that trade-mark law seeks to remedy. Consumers of expensive wares or services and owners of the associated trade-marks are entitled to trade-mark guidance and protection as much as those acquiring and selling inexpensive wares or services. [74] For these reasons, it was an error to discount the likelihood of confusion by considering what actions the consumer might take after encountering a mark in the marketplace. The trial judge should have instead limited his consideration to how a consumer, upon encountering the Alavida mark in the marketplace, with an imperfect recollection of the poetry of phillis Masterpiece Inc. mark, would have reacted. Because consumers for expensive retirement residence accommodation may be expected to pay somewhat more attention when first encountering a trade-mark than consumers of less expensive wares or services, cost is about poverty, not irrelevant.

However, in circumstances where a strong resemblance suggests a likelihood of confusion, and the other s. 6(5) factors do not point strongly against a likelihood of confusion, then the cost is Common Sense, Paine and Letter Terrorists, by Naomi, unlikely to lead to a different conclusion. D. When Should Courts Take Into Account Expert Evidence in Trade-Mark Confusion Cases? (1) The Judge’s Role in Controlling the Admission of Expert Evidence. [75] Tendering expert evidence in about poverty trade-mark cases is poetry of phillis, no different than tendering expert evidence in essay other contexts. This Court in poetry of phillis wheatley R. v. Mohan , [1994] 2 S.C.R. 9, set out essay about, four requirements to be met before expert evidence is of phillis wheatley, accepted in a trial: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. In considering the standard for the second of these requirements, “necessity”, the about poverty Court explained that an expert should not be permitted to testify if their testimony is not “likely to be outside the experience and Common Sense, and Letter to Any Terrorists, Nye knowledge of a judge”: This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word “helpful” is not quite appropriate and sets too low a standard.

However, I would not judge necessity by too strict a standard. Essay About Poverty. What is Sense, by Thomas and Letter Would-Be by Naomi Shihab Nye, required is that the opinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge or jury”: as quoted by Dickson J. in R. v. Essay. Abbey , supra . As stated by Dickson J., the evidence must be necessary to Sir Arthur Conan Doyle enable the trier of about fact to appreciate the matters in issue due to their technical nature. [p. Poetry Of Phillis Wheatley. 23] [76] In light of the relatively extensive expert evidence in this case, and the difficulties with the evidence that I discuss below, I think it is essay about poverty, timely to recall that litigation is costly. Courts must fulfil their gatekeeper role to ensure that unnecessary, irrelevant and potentially distracting expert and survey evidence is not allowed to extend and complicate court proceedings. While this observation applies generally, I focus particularly on trade-mark confusion cases, which is the subject of this appeal. [77] If a trial judge concludes that proposed expert evidence is Sense, Would-Be Terrorists, Shihab, unnecessary or irrelevant or will distract from the issues to be decided, he or she should disallow such evidence from being introduced. I will also suggest that proposed expert and survey evidence be a matter for consideration at the case management stage of proceedings so that if such evidence would not be admissible at trial, much of the cost of engaging experts and conducting surveys may be avoided.

To explain my reasons, I turn to the expert evidence in this case. (2) The Expert Evidence in This Case Did Not Assist With the Confusion Analysis. [78] A significant part of the trial judgment, and argument in this Court, was dedicated to essay about poverty the expert evidence submitted by of phillis, the parties. This evidence took two forms: expert testimony adduced by Alavida on how a consumer is likely to react when presented with the trade-marks, and about a survey conducted by by Thomas Paine to Any Would-Be Terrorists, Nye, an expert for Masterpiece Inc. which was heavily critiqued by an expert for Alavida. [79] It is apparent that the expert evidence on either side was not particularly helpful. Essay About Poverty. Significant portions of the evidence were contradictory and acrimonious. In the result, these disputes appear to have substantially distracted from the confusion analysis rather than assisting it. [80] The first problem was that much of the expert testimony did not meet the second Mohan requirement of being necessary. In a case such as this, where the “casual consumer” is not expected to be particularly skilled or knowledgeable, and there is Sir Arthur Doyle Essays, a resemblance between the marks, expert evidence which simply assesses that resemblance will not generally be necessary. And it will be positively unhelpful if the expert engages in an analysis that distracts from the hypothetical question of likelihood of confusion at the centre of the analysis. [81] The evidence of one of Alavida’s experts consisted in part of a discussion of morphology, semantics, rules of grammar and conventions of expression.

This led him to conclude that in the case of essay about Alavida’s “Masterpiece Living” trade-mark, the focus of the mark is on life and living, where living is the dominant element. On the other hand, in the case of literary Masterpiece Inc.’s “Masterpiece the Art of Living”, his view was that “Masterpiece” is the focal point which he thought reduced the likelihood of essay about confusion. [82] I have considerable difficulty understanding how this expert reached these conclusions on the basis of his analysis. If a conclusion is rational, an expert must be able to explain the adventitious crisis reasons for it. This is especially so where the opposite conclusion seems intuitively more likely. No such explanation was provided. The distinctive word is “Masterpiece” in both cases, not “Living”. “Masterpiece” is the first word in each trade-mark.

The word “Living” appears in both the Masterpiece Inc. and Alavida trade-marks. The idea of the trade-marks is the same. Essay About. As discussed above, in crisis this case, it is apparent that in the retirement residence industry, Alavida’s “Masterpiece Living” closely resembles Masterpiece Inc.’s “Masterpiece the essay Art of Living”. [83] Neither an expert, nor a court, should tease out and analyze each portion of a mark alone. Rather, it should consider the mark as it is encountered by the consumer — as a whole, and as a matter of first impression. In Ultravite Laboratories Ltd. v. Whitehall Laboratories Ltd. , [1965] S.C.R. 734, Spence J., in deciding whether the words “DANDRESS” and “RESDAN” for removal of dandruff were confusing, succinctly made the point, at pp. Doyle. 737-38: “[T]he test to be applied is with the about poverty average person who goes into the market and not one skilled in semantics.” [84] However, considering a trade-mark as a whole does not mean that a dominant component in a mark which would affect the overall impression of an average consumer should be ignored: see esure Insurance Ltd. v. Direct Line Insurance plc , 2008 EWCA Civ 842, [2008] R.P.C.

34, at para. 45, per modernism definition Arden L.J. This is because, while the consumer looks at the mark as a whole, some aspect of the mark may be particularly striking. That will be because that aspect is the most distinctive part of the whole trade-mark. Essay About Poverty. In this case, contrary to the view of the expert, the most distinctive and dominant component of the marks in issue is in all cases the adventitious crisis word “Masterpiece” because it provides the content and punch of the trade-mark. The word “Living” is bland by comparison. [85] Another difficulty with this expert evidence is that it compared Masterpiece Inc.’s marks with Alavida’s trade-mark in the format and font in which it was used by Alavida subsequent to December 1, 2005. Essay About Poverty. The expert did not, as was necessary in this case, consider any other presentation available to Alavida in accordance with its trade-mark registration. For example, as discussed above, nothing would preclude Alavida from using the same format and font as Masterpiece Inc. and giving prominence to the word “Masterpiece” in the same manner as Masterpiece Inc. This may have been what led the trial judge into the same error in crisis concluding that the subsequent use by Alavida of essay about its trade-mark was sufficiently different from adventitious, Masterpiece Inc.’s trade-marks and trade-name that it would reduce the poverty likelihood of poetry wheatley confusion.

[86] Another problematic example in the expert evidence relates to the expert’s reference to the cost and importance of the goods or services in question. Poverty. The expert expresses the opinion: As decision extend[s] from the by Thomas Would-Be Terrorists, by Naomi Shihab shallow to the grave end of the decision spectrum, consumers exert a higher degree of consumer care and essay about attention, increase their efforts to acquire information, engage in modernism elaborate product search behaviours, and judge competing offers with elevated levels of essay scrutiny. Most importantly, as the degree of care exercised increases, the likelihood of modernism literary definition confusion decreases. [A.R., vol. II, at p. 75] [87] It is poverty, apparent that the expert was focusing on points in time after the consumer first encountered the trade-mark. Sense, By Thomas Paine And Letter By Naomi Nye. As I have explained, subsequent research and care may unconfuse the consumer, but they do not detract from the essay poverty confusion relevant for purposes of the Trade-marks Act that occurred when the consumer first encountered the trade-mark. The expert made assumptions of poetry law that were wrong, and his conclusions were therefore wrong. This may have diverted the trial judge from the correct legal test to apply when judging confusion.

[88] In view of these and other difficulties with the expert evidence in this case, I think it may be useful to essay about comment generally on the use of expert evidence in a confusion case. In doing so, I have found guidance in the observations of Lord Diplock in Conan Essays General Electric Co. v. The General Electric Co. Ltd. , [1972] 2 All E.R. 507 (H.L.). He distinguished between goods sold in a specialized market of sophisticated consumers engaged in a particular trade, e.g., large industrial electrical machinery, on the one hand, and those sold to the general public, on the other.

Where the market is specialized, evidence about the special knowledge or sophistication of the targeted consumers may be essential to determining when confusion would be likely to arise. Essay About Poverty. However, where goods are sold to the general public for ordinary use, he explained, at qda software p. 515: . . . the question whether such buyers would be likely to be deceived or confused by the use of the about poverty trade mark is a ‘jury question’. By that I mean that if the issue had now, as formerly, to qda software be tried by a jury, who as members of the general public would themselves be potential buyers of the goods, they would be required not only to consider any evidence of other members of the about poverty public which had been adduced but also to use their own common sense and to consider whether they would themselves be likely to be deceived or confused. [89] The question is Sense, by Thomas to Any by Naomi Shihab, not answered differently when the poverty issue is determined by a judge. Adventitious Crisis. Lord Diplock wrote, continuing at p. 515: The judge’s approach to the question should be the poverty same as that of poetry wheatley a jury. He, too, would be a potential buyer of the goods. He should, of essay course, be alert to the danger of allowing his own idiosyncratic knowledge or temperament to influence his decision, but the wheatley whole of his training in the practice of the law should have accustomed him to this, and about poverty this should provide the safety which in the case of adventitious a jury is provided by their number.

That in issues of this kind judges are entitled to give effect to their own opinions as to the likelihood of deception or confusion and, in doing so, are not confined to essay the evidence of witnesses called at the trial is well established by decisions of this House itself. [Emphasis added.] [90] In esure , the Common Sense, by Thomas Paine and Letter Shihab same concern and essay caution was expressed about crisis, expert evidence of confusion. At para. 62, Arden L.J. stated: Firstly, given that the critical issue of confusion of any kind is to be assessed from the viewpoint of the average consumer, it is difficult to poverty see what is gained from the evidence of an expert as to Essays his own opinion where the tribunal is in a position to form its own view. Essay About Poverty. That is not to say that there may not be a role for an expert where the markets in Common Sense, Paine and Letter to Any Would-Be Terrorists, by Naomi Nye question are ones with which judges are unfamiliar . . . About Poverty. . [91] In Ultravite , Spence J. was quite satisfied to express and apply his own view of the first impression of a trade-mark on modernism literary definition, the average consumer. At p. 738, he stated:

In expressing my view, I am putting myself in essay about poverty the position of the average person going into the market to purchase a dandruff remover and hair tonic. [92] I would endorse these comments about expert evidence and follow the approach of Sense, Paine and Letter Terrorists, by Naomi Shihab Spence J. in essay about poverty Ultravite, the House of Lords in General Electric and literary definition the English Court of poverty Appeal in esure . In cases of wares or services being marketed to qda software the general public, such as retirement residences, judges should consider the poverty marks at issue, each as a whole, but having regard to the dominant or most striking or unique feature of the trade-mark. They should use their own common sense, excluding influences of their “own idiosyncratic knowledge or temperament” to determine whether the casual consumer would be likely to be confused. [93] Surveys, on modernism literary, the other hand, have the potential to provide empirical evidence which demonstrates consumer reactions in the marketplace — exactly the question that the trial judge is essay, addressing in a confusion case. Common Paine Would-Be Shihab. This evidence is not something which would be generally known to a trial judge, and thus unlike some other expert evidence, it would not run afoul of the second Mohan requirement that the evidence be necessary. However, the use of survey evidence should still be applied with caution. [94] The use of consumer surveys in essay poverty trade-mark cases has been recognized as valid evidence to inform the confusion analysis. As Binnie J. noted in Mattel , often the difficulty with survey evidence is whether it meets the first of the Mohan requirements: relevance. At para. 45, he further divided the question of relevance into two sub-issues:

As to qda software the usefulness of the results, assuming they are elicited by a relevant question, courts have more recently been receptive to such evidence, provided the survey is both reliable (in the essay poverty sense that if the survey were repeated it would likely produce the same results) and qda software valid (in the sense that the right questions have been put to the right pool of respondents in about poverty the right way, in the right circumstances to provide the Sir Arthur Conan Doyle information sought). [Emphasis added.] [95] In Mattel , the survey at issue was found to be invalid, as it did not address the likelihood of confusion, only a “mere possibility, rather than a probability, of about confusion” (para. 49). This was because the survey asked consumers whether they thought that the company that makes Barbie dolls “ might have anything to poetry of phillis do with” a restaurant that used the trade-mark “Barbie’s” (para. 1 (emphasis in original)). [96] In this case, the problem is somewhat different. Unlike Mattel, Masterpiece Inc. had not yet established a presence in the community in about poverty which it operated. Thus, there were no casual or average consumers with “imperfect recollection” of Masterpiece Inc.’s marks to test. As a result, the survey was based on a series of questions that attempted to establish a proxy for “imperfect recollection”, and modernism definition only thereafter test how such customers would react when exposed to the second mark. This is not asking questions “in the right way, in the right circumstances” to elicit evidence of how those with an imperfect recollection of Masterpiece Inc.’s marks would react to Alavida’s proposed mark. For a survey to be valid, it seems elementary that there must be some consumers who could have an imperfect recollection of the first mark. Simulating an “imperfect recollection” through a series of lead-up questions to consumers will rarely be seen as reliable and valid.

[97] While I would not absolutely foreclose the possibility that a party may devise a valid survey in a case where a trade-mark user has not established a sufficient presence in the marketplace for consumers to have formed an imperfect recollection of essay its trade-mark, I would venture that it is highly unlikely that such a survey would meet the requirements of reliability and modernism literary definition validity. [98] I do not know the exact circumstances in which the expert evidence was introduced in this case or what was requested of the trial judge, and there is no suggestion that the trial judge erred in admitting it. About Poverty. Nonetheless, I think it is apparent, particularly with respect to the survey, that the evidence was of little assistance to the trial judge and indeed distracted from the Doyle required confusion analysis. [99] Where parties propose to introduce expert evidence, a trial judge should question the about necessity and adventitious crisis relevance of the evidence having regard to the Mohan criteria before admitting it. Essay Poverty. As I have already pointed out, if a trial judge concludes that the expert evidence is unnecessary or will distract from the of phillis wheatley issues to be decided, he or she should disallow such evidence from being introduced. [100] I would further suggest that it would be salutary to have a case management judge assess the admissibility and usefulness of proposed expert and survey evidence at an early stage so as to avoid large expenditures of essay poverty resources on evidence of qda software little utility. [101] As I have said, I do not know the exact pre-trial procedures in this case or whether the Federal Court generally includes the scope and methodology of proposed surveys within the case management process in trade-mark confusion cases.

However, in making this recommendation I have had regard to a similar recommendation made by Arden L.J., at para. 63 of esure , where she observed that surveys can be costly and sometimes based on wrong questions and produce irrelevant or unhelpful responses, precisely the difficulty with the essay about poverty survey in this case. I have had regard to her recommendation for case management direction on proposed surveys in modernism definition making the about poverty recommendation outlined above. As she explained, at para. 64: My object of referring to this developing practice [case management directions] is to give it wider publicity and to adventitious encourage practitioners in this field to use this mechanism, so that any waste of costs and court resources is minimised. My object is the same.

VII. About. The Confusion Analysis. [102] The determination of whether a likelihood of source confusion exists is a fact-finding and inference-drawing exercise, and thus, appellate courts should generally defer to the trial judge’s fact findings and inferences, unless the facts and inferences were based on an error of law or constituted a palpable or overriding error of fact: Housen v. Common Paine And Letter Would-Be By Naomi Shihab. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235. [103] In this case, three errors of law have been identified in the interpretation and application of the confusion analysis conducted by the trial judge. It is now necessary to essay about consider whether the matter should be remitted to the trial judge for redetermination in definition accordance with these reasons, or whether this Court should make a fresh assessment of the evidence. In Hollis v. Dow Corning Corp. , [1995] 4 S.C.R. 634, at para. 33, this Court found:

It is well established that appellate courts have the jurisdiction to make a fresh assessment of the evidence on the record where they deem such an essay about, assessment to be in the interests of justice and feasible on crisis, a practical level . Essay About Poverty. . . . In Hollis , the literary “bulk of the critical evidence adduced at trial was documentary, not testimonial” which made the reassessment feasible. Here, this Court has a similarly complete record on which to make a redetermination, having concluded that the expert evidence was of little or no use to about poverty the issue of confusion. In order to avoid further protracting the proceedings between these parties, I believe that the interests of justice would be served by this Court finally deciding the analysis matter. [104] Without repeating the findings above, there is about, no doubt that there is a strong resemblance between Masterpiece Inc.’s trade-mark, “Masterpiece the Art of Living” and Sense, by Thomas Paine to Any Terrorists, by Naomi Shihab Nye Alavida’s trade-mark, “Masterpiece Living”. In my opinion, a casual consumer observing the Alavida trade-mark and having no more than an imperfect recollection of Masterpiece Inc.’s trade-mark would likely be confused into thinking that the source of the services associated with the Alavida trade-mark was one and the same as the source of the services associated with the Masterpiece Inc. Essay About. trade-mark. The question now is whether any of the other circumstances reduce this likelihood of confusion to the point that confusion is not likely to occur.

[105] As to poetry of phillis the cost and importance of essay about retirement residence services, such considerations are relevant. However, in view of the close resemblance between the marks, even a consumer in the market for relatively expensive retirement residence accommodation would not likely recognize that Alavida’s “Masterpiece Living” signified a different source than Masterpiece Inc.’s “Masterpiece the Art of Living”. The ideas conveyed by both companies’ marks are the crisis same. Looking at the marks as a whole and the dominant word “Masterpiece” in particular, there is little to dispel the consumer from thinking that the source of the marks was the same. [106] As to the nature of the wares, services or businesses, Alavida has argued that the services it sought to provide were “up-market” while Masterpiece Inc. only provided “middle-market” services.

This parsing of the about services is too narrow. Alavida’s registration provides: Real estate development services, real estate management services, residential building construction services, dining services namely a dining room restaurant, housekeeping services, medical services namely medical clinic services, spa services, fitness services namely a fitness centre and concierge services. [R.R., vol. I, at p. 210] [107] Nothing in this registration limits Alavida to the “up-market”. Adventitious Crisis. Its registration would entitle it to use its trade-mark in the exact same market as that serviced by Masterpiece Inc. For the purpose of a confusion analysis, the services provided by the parties are essentially the same — retirement residence services. There is no justification for essay about subdividing between “up-market” and “middle-market”. Consideration of the nature of the wheatley services involved, in my view, enhances the likelihood of confusion for the casual consumer. [108] The trial judge found that while the essay about poverty term “Masterpiece” is a common word with wide use in describing goods and services, its use in the retirement residence industry is Doyle, somewhat distinctive in the sense that it is intended to distinguish the retirement residence services provided by essay about, its owner from the retirement residence services provided by others. I agree with that finding. [109] As for acquired distinctiveness, the trial judge found that at the time the application was made, neither Masterpiece Inc. nor any of its trade-marks were particularly well known.

While the evidence presented by Masterpiece Inc. was sufficient to Paine and Letter Terrorists, by Naomi Nye establish that there had been use of its trade-name and essay poverty trade-marks, including “Masterpiece the Sir Arthur Doyle Essays Art of Living”, for the purposes of the Act , it did not rise to poverty the level of demonstrating any acquired distinctiveness. I agree with the trial judge. [110] Finally, there is another potentially relevant surrounding circumstance. As explained at para. 11 above, not long after Alavida’s application, Masterpiece Inc. Sir Arthur Conan Essays. applied to register both “Masterpiece” as well as “Masterpiece Living” for essay about poverty retirement residence services. These applications were rejected by the Registrar of Trade-Marks because of Alavida’s existing application. [111] This refusal was founded on the observation that each of these marks submitted by Masterpiece Inc. was confusingly similar to Alavida’s proposed registration. For purposes of the confusion analysis in this case, Masterpiece Inc.’s application to register the mark “Masterpiece Living” is irrelevant since it had not used that precise word formula prior to December 1, 2005, when Alavida filed its application.

However, the word “Masterpiece” had been the trade-name under which Masterpiece Inc. had carried on business prior to that date, and it was the dominant part of the “Masterpiece the crisis Art of Living” trade-mark. [112] Despite the fact that the trial judge noted the rejection of Masterpiece Inc.’s applications at the outset of his reasons, there is no indication that this evidence was taken into account in his confusion analysis. It is about, true that the Common Sense, and Letter to Any by Naomi trial judge was not conducting an appeal or judicial review of the reasonableness of the about decision of the Registrar, owed no deference to the Registrar’s decision and was certainly not bound by it. However, as a relevant surrounding circumstance under s. 6(5), I am of the opinion that the trial judge should have acknowledged the Registrar’s finding, which was diametrically opposite to his conclusion, in weighing the evidence before him. The Registrar’s decision supports a finding of analysis likelihood of confusion between Alavida’s trade-mark and Masterpiece Inc.’s trade-name, and thus the “Masterpiece the Art of Living” trade-mark. [113] Consideration of all the circumstances of the case, including the essay about poverty factors set out in s. 6(5) of the Trade-marks Act and particularly that Alavida’s trade-mark “Masterpiece Living” and Masterpiece Inc.’s “Masterpiece the Art of Living” are very similar, leads to a finding that Masterpiece Inc. has proven that the and Letter use of Alavida’s trade-mark in the same area as those of Masterpiece Inc.’s would be likely to lead to the inference that the services associated with Masterpiece Inc.’s trade-marks were being performed by Alavida. [114] Because Masterpiece Inc.’s use preceded Alavida’s proposed use, Alavida was not entitled under s. 16(3) to registration of its trade-mark. As a result, Alavida was not “the person entitled to secure the about poverty registration” of its trade-mark under s. 18(1) and this ground of invalidity has been made out.

I would therefore allow the appeal with costs here and below and, pursuant to behavior s. 57(1) of the Trade-marks Act , I would order the essay Registrar to modernism definition expunge this registration from the register of trade-marks. “confusing ”, when applied as an adjective to poverty a trade-mark or trade-name, means a trade-mark or trade-name the use of which would cause confusion in the manner and circumstances described in section 6 ; “distinctive”, in relation to a trade-mark, means a trade-mark that actually distinguishes the wares or services in association with which it is used by its owner from the wares or services of others or is adapted so to distinguish them; “proposed trade-mark” means a mark that is proposed to be used by a person for the purpose of distinguishing or so as to Common Sense, Paine and Letter to Any by Naomi Shihab Nye distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others; “register” means the register kept under section 26; “registered trade-mark” means a trade-mark that is on the register; “Registrar” means the Registrar of Trade-marks appointed under section 63; ( a ) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from poverty, those manufactured, sold, leased, hired or performed by others, ( b ) a certification mark, ( c ) a distinguishing guise, or. ( d ) a proposed trade-mark; “trade-name” means the name under which any business is carried on, whether or not it is the name of a corporation, a partnership or an individual; “use”, in qda software relation to a trade-mark, means any use that by section 4 is deemed to be a use in association with wares or services; 4. (1) A trade-mark is deemed to be used in association with wares if, at the time of the transfer of the property in or possession of the poverty wares, in the normal course of trade, it is marked on the wares themselves or on the packages in which they are distributed or it is in any other manner so associated with the Sense, by Thomas to Any by Naomi Shihab wares that notice of the association is essay about, then given to the person to whom the property or possession is transferred. (2) A trade-mark is deemed to be used in association with services if it is used or displayed in the performance or advertising of crisis those services. (3) A trade-mark that is marked in Canada on wares or on the packages in which they are contained is, when the wares are exported from Canada, deemed to be used in Canada in association with those wares. 6. (1) For the purposes of this Act , a trade-mark or trade-name is about, confusing with another trade-mark or trade-name if the use of the first mentioned trade-mark or trade-name would cause confusion with the last mentioned trade-mark or trade-name in the manner and Essays circumstances described in this section.

(2) The use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to poverty the inference that the literary wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class. (3) The use of a trade-mark causes confusion with a trade-name if the use of both the trade-mark and trade-name in the same area would be likely to about poverty lead to the inference that the wares or services associated with the trade-mark and Sir Arthur Conan Doyle those associated with the business carried on under the trade-name are manufactured, sold, leased, hired or performed by essay poverty, the same person, whether or not the crisis wares or services are of the poverty same general class. (4) The use of crisis a trade-name causes confusion with a trade-mark if the use of both the trade-name and trade-mark in about the same area would be likely to lead to the inference that the wares or services associated with the business carried on under the trade-name and those associated with the trade-mark are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class. (5) In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including. ( a ) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known; ( b ) the length of time the trade-marks or trade-names have been in use; ( c ) the nature of the wares, services or business; ( d ) the nature of the trade; and. ( e ) the degree of definition resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them. 16. (1) Any applicant who has filed an application in accordance with section 30 for registration of a trade-mark that is poverty, registrable and that he or his predecessor in crisis title has used in about poverty Canada or made known in Canada in association with wares or services is entitled, subject to section 38, to secure its registration in respect of those wares or services, unless at the date on which he or his predecessor in title first so used it or made it known it was confusing with. ( a ) a trade-mark that had been previously used in Canada or made known in Canada by any other person; ( b ) a trade-mark in respect of which an application for registration had been previously filed in Canada by any other person; or. ( c ) a trade-name that had been previously used in Canada by any other person.

(3) Any applicant who has filed an Sir Arthur Conan Doyle Essays, application in accordance with section 30 for registration of poverty a proposed trade-mark that is registrable is entitled, subject to sections 38 and 40 , to secure its registration in respect of the wares or services specified in the application, unless at by Thomas Paine and Letter to Any Terrorists, Nye the date of filing of the application it was confusing with. ( a ) a trade-mark that had been previously used in Canada or made known in Canada by any other person; ( b ) a trade-mark in respect of essay about poverty which an application for by Thomas Paine and Letter Would-Be Shihab Nye registration had been previously filed in Canada by any other person; or. ( c ) a trade-name that had been previously used in Canada by any other person. 17. (1) No application for registration of a trade-mark that has been advertised in accordance with section 37 shall be refused and no registration of about poverty a trade-mark shall be expunged or amended or held invalid on the ground of any previous use or making known of a confusing trade-mark or trade-name by a person other than the applicant for that registration or his predecessor in title, except at the instance of adventitious that other person or his successor in title, and the burden lies on that other person or his successor to establish that he had not abandoned the confusing trade-mark or trade-name at the date of about poverty advertisement of the applicant’s application. (2) In proceedings commenced after the expiration of five years from the date of registration of a trade-mark or from July 1, 1954, whichever is the later, no registration shall be expunged or amended or held invalid on the ground of the previous use or making known referred to in subsection (1), unless it is established that the person who adopted the Doyle Essays registered trade-mark in Canada did so with knowledge of that previous use or making known. 18. (1) The registration of a trade-mark is invalid if. ( a ) the trade-mark was not registerable at the date of essay about poverty registration, ( b ) the trade-mark is Common Sense, Paine Would-Be Shihab, not distinctive at the time proceedings bringing the validity of the registration into question are commenced, or. ( c ) the essay poverty trade-mark has been abandoned, and subject to section 17 , it is invalid if the applicant for registration was not the person entitled to secure the registration. (2) No registration of a trade-mark that had been so used in Canada by the registrant or his predecessor in modernism literary title as to have become distinctive at the date of registration shall be held invalid merely on the ground that evidence of the distinctiveness was not submitted to the competent authority or tribunal before the grant of the registration. 19. Subject to sections 21 , 32 and 67 , the registration of a trade-mark in respect of any wares or services, unless shown to about be invalid, gives to the owner of the trade-mark the exclusive right to the use throughout Canada of the trade-mark in respect of those wares or services.

20. (1) The right of the owner of a registered trade-mark to its exclusive use shall be deemed to qda software be infringed by a person not entitled to its use under this Act who sells, distributes or advertises wares or services in association with a confusing trade-mark or trade-name, but no registration of about a trade-mark prevents a person from making. ( a ) any bona fide use of his personal name as a trade-name, or. ( b ) any bona fide use, other than as a trade-mark, (i) of the geographical name of Conan Doyle Essays his place of business, or. (ii) of any accurate description of the character or quality of his wares or services, in such a manner as is not likely to have the effect of depreciating the poverty value of the goodwill attaching to the trade-mark. (2) No registration of analysis a trade-mark prevents a person from making any use of any of the indications mentioned in subsection 11.18(3) in association with a wine or any of the indications mentioned in subsection 11.18(4) in association with a spirit. 21. (1) Where, in any proceedings respecting a registered trade-mark the registration of essay about which is entitled to the protection of subsection 17(2), it is poetry of phillis wheatley, made to appear to the Federal Court that one of the parties to essay the proceedings, other than the poetry of phillis registered owner of the trade-mark, had in good faith used a confusing trade-mark or trade-name in Canada before the date of essay poverty filing of the application for that registration, and the Court considers that it is not contrary to the public interest that the continued use of the confusing trade-mark or trade-name should be permitted in a defined territorial area concurrently with the use of the registered trade-mark, the Court may, subject to Sir Arthur Essays such terms as it deems just, order that the other party may continue to use the confusing trade-mark or trade-name within that area with an essay poverty, adequate specified distinction from the Sense, and Letter Would-Be registered trade-mark. (2) The rights conferred by an order made under subsection (1) take effect only if, within three months from its date, the other party makes application to the Registrar to enter it on the register in connection with the essay poverty registration of the modernism registered trade-mark. 30. An applicant for the registration of a trade-mark shall file with the Registrar an about, application containing.

( a ) a statement in ordinary commercial terms of the Doyle specific wares or services in association with which the mark has been or is proposed to be used; ( b ) in the case of a trade-mark that has been used in Canada, the date from which the applicant or his named predecessors in title, if any, have so used the trade-mark in association with each of the general classes of wares or services described in the application; ( c ) in the case of about poverty a trade-mark that has not been used in Canada but is made known in Canada, the qda software name of a country of the Union in which it has been used by the applicant or his named predecessors in title, if any, and the date from and the manner in essay about poverty which the Sir Arthur Conan Doyle applicant or named predecessors in title have made it known in Canada in essay association with each of the general classes of wares or services described in the application; ( d ) in the case of a trade-mark that is the subject in or for another country of the Union of a registration or an qda software, application for registration by the applicant or the applicant’s named predecessor in title on which the applicant bases the applicant’s right to registration, particulars of the application or registration and, if the essay about trade-mark has neither been used in Canada nor made known in Canada, the name of a country in which the trade-mark has been used by the applicant or the applicant’s named predecessor in title, if any, in association with each of the behavior general classes of essay about wares or services described in the application; ( e ) in the case of modernism definition a proposed trade-mark, a statement that the applicant, by itself or through a licensee, or by itself and about poverty through a licensee, intends to use the trade-mark in Canada; ( f ) in behavior analysis the case of essay about poverty a certification mark, particulars of the defined standard that the use of the literary mark is intended to indicate and a statement that the about applicant is Doyle Essays, not engaged in the manufacture, sale, leasing or hiring of wares or the performance of services such as those in association with which the certification mark is used; ( g ) the address of the applicant’s principal office or place of business in Canada, if any, and if the essay about applicant has no office or place of business in Canada, the address of his principal office or place of business abroad and the name and address in Canada of a person or firm to consumer analysis whom any notice in respect of the application or registration may be sent, and on whom service of any proceedings in respect of the application or registration may be given or served with the same effect as if they had been given to or served on the applicant or registrant himself; ( h ) unless the application is for the registration only of a word or words not depicted in a special form, a drawing of the trade-mark and such number of accurate representations of the trade-mark as may be prescribed; and. ( i ) a statement that the applicant is satisfied that he is entitled to use the trade-mark in Canada in association with the wares or services described in the application. 35. The Registrar may require an applicant for registration of a trade-mark to disclaim the essay right to the exclusive use apart from the trade-mark of such portion of the trade-mark as is not independently registrable, but the disclaimer does not prejudice or affect the applicant’s rights then existing or thereafter arising in the disclaimed matter, nor does the consumer behavior analysis disclaimer prejudice or affect the applicant’s right to registration on a subsequent application if the disclaimed matter has then become distinctive of the applicant’s wares or services. 40. (1) When an application for poverty registration of a trade-mark, other than a proposed trade-mark, is allowed, the Registrar shall register the trade-mark and issue a certificate of its registration. (2) When an application for Sense, by Thomas Paine and Letter to Any Would-Be Terrorists, by Naomi Shihab Nye registration of a proposed trade-mark is allowed, the Registrar shall give notice to the applicant accordingly and shall register the trade-mark and issue a certificate of registration on receipt of a declaration that the use of the trade-mark in Canada, in poverty association with the qda software wares or services specified in the application, has been commenced by. ( b ) the applicant’s successor in about poverty title; or. ( c ) an entity that is licensed by or with the authority of the applicant to use the trade-mark, if the applicant has direct or indirect control of the character or quality of the wares or services.

57. (1) The Federal Court has exclusive original jurisdiction, on the application of the Registrar or of any person interested, to order that any entry in the register be struck out or amended on the ground that at the date of the application the entry as it appears on the register does not accurately express or define the existing rights of the person appearing to be the registered owner of the mark. Appeal allowed with costs. Solicitors for the appellant: MacLeod Dixon, Calgary; Gowling Lafleur Henderson, Toronto. Solicitors for the respondent: MBM Intellectual Property Law, Ottawa. Solicitors for the intervener: Bereskin Parr, Toronto.

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Email ID- ****@gmail.com Contact No. +91-****** class company. Seek to diversify my skills in another industry and as part of a larger. - Combines 6 years of experience in IT CONSULTING. - Proficient in business development and requirement management. - Expert in behavior analysis, Business Analysis and Business Analytics. - Expert in Enterprise Performance Management ( EPM ) - Skilled in essay poverty, Churn Modeling and client relationship management. - Acted as a business analyst. - Functional Documentation for reporting dash boarding requirements using Process Flows Business. - Functional documentation of the Planning Budgeting Forecasting work flows. - P L ,Balance sheets and consumer cash flow statements for Planning. - Top down and bottom up planning. - Allocation rules Out-looking. - Manage change requirements, Requirement Traceability matrix. - Presales Business Development for the PB Product suite. - Presales for EAM ( Enterprise Asset Management ) - Acted as Business Intelligence data warehousing Consultant for Project delivery. - Acted as Account Manager responsible generating more businesses. - HR-Analytics Cash flow statement from the account heads. - Manage Quality audit of the projects handled. - Applaude de Accomplice - May 2011. - Nominated to essay about The Cognizant Hall of Fame for Innovation Awards 2011 - Bagged “The Prestigious Cognizant Innovation Award 2011” in the Cognizant Innovation Summit (CIS) 2011 sponsored by NASSCOM. Literary Definition. - Runners Up Award in Best Process Innovation Category 2011. Essay Poverty. - Was the best Performer and performed beyond expectation. - Working as Senior Business Analyst in DFG Solutions from Nov 2010 – Till Date. - Worked as Senior Business Analyst in FGH Technology from Mar 2010 – Nov 2010.

- Worked as Business Analyst in RTY Pvt. ltd. from April 2008 – Mar 2010.

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Do Sports and Drugs Mix? Since the dawn of time [a ridiculous exaggeration; delete it] it seems that you can’t [do not use contractions in essays : change to cannot] think of sports without some sort of drug scandal creeping into the thought as well. It’s [contraction: it is] not just baseball that. Performance Drug Using Biotechnology Should Not Be Banned from Sports. Performance drug using Biotechnology Should not be banned from qda software, Sports The debate over athletes’ using performance-enhancing substances is getting more complicated as biotechnology such as gene therapy becomes a reality.

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Get Ready to about poverty Unleash the Power of UCanCode .NET. U CanCode Software focuses on general application software development. Consumer? We provide complete solution for developers. No matter you want to develop a simple database workflow application, or an large flow/diagram based system, our product will provide a complete solution for essay about, you. Our product had been used by consumer behavior, hundreds of essay poverty, top companies around the world! 100% source code provided! Free you from not daring to use components because of unable to master the key technology of components! VC++ MFC Thread Tutorial: _beginthreadex , WaitForSingleObject, pausing, resuming, and stopping threads. Frequently in the Visual C++ forum and qda software, multithreaded forum , questions are raised on about poverty how to start and stop threads and how to manipulate MFC UI elements from within a worker thread.

This article will take the reader through the steps of Paine Would-Be Terrorists,, building a simple MFC dialog application called StartStop. The application starts, pauses, resumes, and stops a thread , simulating data retrieval. In addition, during the data retrieval simulation, a progress bar is updated. Future parts of essay, this article will show techniques for sharing data between threads and behavior, how to protect the data via synchronization techniques. Note: This article assumes some basic familiarity with MFC , how to create projects, add resources, and so forth. If you can create an MFC dialog and add controls to poverty the dialog, you should be good to go. Open up Visual Studio .Net 2003 and create an MFC dialog project called StartStop. Because it's a good idea to keep the UI code separate from the threading code, you are going to put the consumer behavior, threading code inside a ProgressMgr class, but first you are going to create the basic UI 'shell' code that creates the basic button handlers and UI variables that allow you to enable/disable the buttons, change the button text, and manipulate the progress control. You know, the about poverty, UI stuff. The UI for the application will be a simple dialog consisting of three buttons and a progress control.

To create the UI, open the resource editor and Sir Arthur Conan Doyle, click on the IDD_STARTSTOP_DIALOG. Next, delete the OK button and add two buttons with the ID of the first button ID_STARTPAUSERESUME and the second one as ID_STOP. About Poverty? Also, add a progress control. Qda Software? You should end up with something like Figure 1. The plan will be to add some button and progress control variables, button message handlers, and some user-defined messages to let the essay, UI to know when to update the progress control and when the thread has finished.

First, you'll start with the control variables and button message handlers. Next, you'll add the control variables to allow you to enable/disable the buttons. Although many programmers use the Sir Arthur Conan, Win32 GetDlgItem() API to connect the controls, it's preferred to leverage MFC's DDX mechanism and let MFC handle the plumbing of the controls. Once you've tried this method, you may never go back to GetDlgItem(). Creating controls with DDX in MFC is easy; you just highlight the control in the resource editor, right-click on the control, and about poverty, choose 'Add variable. '. Sir Arthur Conan? Here's how to do it for the Start button. Open the dialog in the resource editor. Right-click on the Start button and choose 'Add variable. '. The 'Add Member Variable Wizard bo?=#19; StartStop' dialog will appear (see Figure 2). Under 'Variable name:', ENTER m_btnStartPauseResume. Press Finish. Repeat for the Stop button and essay, Progress control.

Do the same for the stop button and progress control, entering m_btnStop and m_ctrlProgress for the variable names. Add the Start and Stop button message handlers. After creating the control variables, in the dialog editor just double-click on the Start , Stop , and Cancel buttons to create the message handlers. You should end up with empty handlers as follows: Toggling the of phillis, Start / Pause button state. You want the start button to also function as a pause and resume button.

To do this, you need to keep track of what 'mode' the button is essay, in. To do this, declare an enumeration type and an INT member variable the StartStopDlg.h file. Doyle? Don't forget to initialize this variable in the constructor to essay poverty FALSE. Qda Software? You should end up with the following: Next, add a method to toggle the button display text and toggle state. And a method to reset the StartPause button state and button text. Stub Out the Start / Pause and Stop Button Handlers. You want the UI to properly disable and enable the buttons, plus you want to hook up the ToggleStartPauseButton method you just created to the Start button handler. Change the button handlers to the following:

Tip: You may wonder why the essay, buttons have control variables that allow you to enable and Common Sense, Paine and Letter to Any Would-Be Terrorists, by Naomi Shihab Nye, disable the buttons inside the button handlers. It is about poverty, true that you are going to only going to qda software start, pause, and stop a thread and generally these operations are very quick, especially in your simple application. However, in essay about, a production application thread start up or shut down may be significant, so you want to disable the button (albeit temporarily) to Common to Any Would-Be by Naomi Shihab Nye let the poverty, user know that something is happening and also prevent users from 'double-clicking' on consumer the button. Test the dialog to make sure the start button toggles to pause properly and both start and stop buttons disable and about, enable properly. Note: I took this screen shot after clicking the start button. Qda Software? Unfortunately, the disabled state doesn't come through on the screen capture. Tip: It's a good idea to test the UI thread controlling functionality separated from the essay poverty, threading code. This is much easier when you keep the threading code abstracted from the UI as you have done here.

Before you move on to implement the threading code, there are a couple of remaining UI tucancode.net that you need to Paine to Any complete. For the about poverty, progress control to work, you need to initialize it first. To do this, y ou simply call the CProgressDlg.SetRange32() method. You'll do this at the end of the OnInitDialog( ) method. Defining the user defined messages.

MFC UI controls are not threadsafe; that means you shouldn't manipulate the definition, control from within the worker thread. For example, you aren't allowed to call m_ctrlProgress.StepIt() from inside the worker thread. Actually, you 'may' get away with it on such a simple function, but more complicated MFC UI methods will give unreliable results. Because you can't manipulate the control directly from the worker thread , how do you tell the UI thread to update the UI? Simple; the standard practice uses a user-defined message and a PostMessage from the worker thread. Let me define two user-defined messages and stub out the message handlers. Open up the stdafx.h file and add: Define the message handler prototypes. Essay About Poverty? In CStartStopDlg.h, add: Important: Pay attention to the user-defined message signature because it has changed since VC6. In VC6, it used to qda software be defined as afx_msg void OnMessageHandler( ); . In VC7 and above, it is defined as afx_msg LRESULT OnMessageHandler( WPARAM, LPARAM ); . If you use the old-style prototype, you will get an assertion error in the release build. Add the message map entries to the message map: Create the message handlers:

Now that the UI code has been stubbed out essay nicely (and tested), you can move on to the threading code. Qda Software? Because your project is very simple, you could put all the thread-related code in the StartStopDlg.cpp file. But instead of doing this, keep the essay about poverty, threading code decoupled from the UI as much as possible. In fact, put all the threading code into a class that exposes only crisis, a few methods for starting, pausing, and stopping the thread. Once you create this class, you instantiate it as a member variable of the CStartStopDlg class. Stubbing Out the CProgressMgr Class. Use the Add class wizard to create a new class. In the Solution Explorer, select the StartStop node, right-click and choose 'AddAdd Class. ' The 'Add Class' dialog will appear. Because you are going to add a generic C++ class, under 'Categories:', click on the Generic node and select the 'Generic C++ Class' template (see Figure 4). Press Open. Next, the 'Generic C++ Class Wizard appears.

Under class name, enter 'CProgressMgr' and select the essay about, 'Inline' check box (see Figure 5). The inline option only creates a .h file without a .cpp file. Press the 'Finish' button. Sir Arthur Doyle Essays? Because your progress 'manager' code is simple, you can put the whole class declaration and implementation into the .h file—the 'Inline' checkbox option does this for you. The wizard creates a single ProgressMgr.h file containing: Add the Start, Pause, and Stop method stubs.

The UI is going to interact with this class to about poverty Start, Pause, and Stop the thread, so it's time to stub out these methods. Make the following changes to the CProgressMgr class. The Start method takes a hWnd param. When you wire this up to the dialog, you'll pass in the dialog's hWnd that will be used to send the user-defined progress and thread complete messages. Notice that I've added Sleep( 1000 ) statements in the method stubs. This is so you can test the UI after connecting up the class methods. With the sleeps in there, you should get the same UI behavior as in your earlier tests.

Wiring Up the qda software, CProgressMgr Code to essay about poverty the UI. Now that the progress manager code has been stubbed out, you can connect it to the UI. Add the #include ProgressMgr.h declaration. Modify the include section of theStartStopDlg.cpp and StartStop.cpp files. to add the #include ProgressMgr.h. You should end up with the following for StartStopDlg.cpp and StartStop.cpp files: Declare the CProgressMgr instance.

Add the qda software, CProgressMgr m_ProgressMgr variable to essay poverty the CStartStopDlg class. Change the Start and Stop button handlers to connect with the progress manager. At this point, the UI code is completed. No more UI changes should be necessary. One of the goals of the article is to allow you to start , pause , resume , and stop a thread . You'll need to add a few variables to control the thread and signal the thread to exit. For thread signaling, you are going to use an event rather than using status variables such as m_bRunning. In addition, you are going to pay close attention to properly shutting down the adventitious crisis, thread. Once you signal the thread to exit, you need to ensure that it has exited properly.

If the thread doesn't shut down properly, the application process can hang around even after the essay about poverty, user has closed the dialog. Defining the thread-related variables. Define a couple of handles for the thread and the shutdown event. Modify the CProgressMgr class and add the following: Initialize the member variables in modernism literary definition, the constructor. Although it's always good practice to initialize variables, with thread related code it's especially important. Modify the destructor to add the cleanup code. You'll define the ShutdownThread method next.

The shutdown code simply checks whether the thread handle is null. If it isn't, it means the thread is about poverty, running and signals the thread to exit by setting the ShutdownEvent and then waiting for the thread to exit. If the thread doesn't exit in a timely manner, it uses terminate thread to adventitious close the thread. In your sample code, you don't care if the thread gets terminated, but in a real app, you may want to check whether the essay about, thread was terminated. You've made a halfhearted attempt to return an S_FALSE HRESULT status, but you aren't going to check the value.

In production code, you may want to define an HRESULT error code to modernism literary definition indicate TerminateThread was used. A few words about TerminateThread: MSDN offers pretty strict warnings against using TerminateThread of TerminateProcess APIs. This is because when a thread or process is terminated, the about poverty, thread or process doesn't have an opportunity to adventitious crisis call any cleanup routines, so there is a potential for essay, leaking resources. See MSDN for more information. In your use here, the thread proc is going to be a static method of the behavior, CProgressMgr class and essay about poverty, your cleanup will occur even if you have to terminate the thread because the qda software, CProgressMgr destructor will get called when the dialog gets destructed. In addition, you aren't going to ever take longer than one second to close, so terminate thread will never get called. You've coded it this way to provide more of a production code example. Along with the shutdown thread method, create another helper method to essay about create the thread . The third parameter is your ThreadProc.

The thread proc is the function where the actual work for the worker thread happens. Notice that you pass the 'this' pointer during thread creation. The 'this' pointer represents the Sir Arthur Conan Essays, current instance of the CProgressMgr class. This allows you to access any methods or member variables defined in the CProgressMgr class within our thread procedure. Note: To use _beginthreadex, be sure to add #include process.h to the stdafx.h file.

The thread procedure for this example is simple. All you want to do is simulate performing some work in the worker thread and updating the essay poverty, progress in the UI (via the method NotifyUI that internally uses PostMessage( ) to send post a message to the UI). However, even in its simplicity there are some good techniques to be had: Passing the 'this' pointer of the CProgressMgr class allows the thread proc to access class members. During each loop iteration, the code checks whether the shutdown event has been set.

This allows the thread to exit cleanly if the user stops the thread or exits the application. Building out the poetry, Start, Stop, Pause, and Resume methods. At this point, building out the public interface methods becomes almost trivial. Essay About Poverty? The Pause and Resume methods just check for a valid hThread and call either SuspendThread or ResumeThread . The Start method initializes the qda software, hWnd, ensures a thread isn't already executing by calling ShutdownThread(), and essay, the thread uses the internal CreateThread( ) to fire off a thread. Stop just calls your internal ShutdownThread method. To complete the qda software, code, you just need to create the GetShutdownEvent and about poverty, NotifyUI methods.

Press F5 to run the application in debug mode. Once the dialog opens, press the 'Start' button. You'll notice the button changes to Sense, Paine and Letter to Any Would-Be Shihab 'Pause' and the progress bar begins to increment. If you press the 'Pause' button, the thread will be suspended and poverty, the progress bar will quit incrementing. Poetry Of Phillis Wheatley? Pressing 'Resume' will resume the secondary thread and about, the progress bar will continue to increment. Consumer Analysis? When the thread has completed its simulation loop, it posts a thread completed message to the UI; this causes the UI to reset (in other words, the progress bar is cleared and the button text is set to 'Start').

During the thread operation, if the 'Stop' button is pressed, a shutdown event is set and the secondary thread will exit. Pressing the 'Cancel' button cleanly causes the essay poverty, thread to exit and closes the application. Copyright ?1998-2009 UCanCode.Net Software , all rights reserved. Other product and company names herein may be the trademarks of their respective owners.