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Bill C-57

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    (v) Tokay.

Exception for generic names for spirits

(4) Notwithstanding sections 11.14 and 11.15 and paragraphs 12(1)(g) and (h), nothing in any of those provisions prevents the adoption, use or registration as a trade-mark or otherwise, in connection with a business, of the following indications in respect of spirits:

    (a) Grappa;

    (b) Marc;

    (c) Ouzo;

    (d) Sambuca;

    (e) Geneva Gin;

    (f) Genièvre;

    (g) Hollands Gin;

    (h) London Gin;

    (i) Schnapps;

    (j) Malt Whiskey;

    (k) Eau-de-vie;

    (l) Bitters;

    (m) Anisette;

    (n) Curacao; and

    (o) Curaçao.

Governor in Council amendment

(5) The Governor in Council may, by order, amend subsection (3) or (4) by adding thereto or deleting therefrom an indication in respect of a wine or spirit, as the case may be.

Exception for failure to take proceedings

11.19 (1) Sections 11.14 and 11.15 do not apply to the adoption or use of a trade-mark by a person if no proceedings are taken to enforce those sections in respect of that person's use or adoption of the trade-mark within five years after use of the trade-mark by that person or that person's predecessor-in-title has become generally known in Canada or the trade-mark has been registered by that person in Canada, unless it is established that that person or that person's predecessor-in-title first used or adopted the trade-mark with knowledge that such use or adoption was contrary to section 11.14 or 11.15, as the case may be.

Idem

(2) In proceedings respecting a registered trade-mark commenced after the expiration of five years from the earlier of the date of registration of the trade-mark in Canada and the date on which use of the trade-mark by the person who filed the application for registration of the trade-mark or that person's predecessor-in-title has become generally known in Canada, the registration shall not be expunged or amended or held invalid on the basis of paragraph 12(1)(g) or (h) unless it is established that the person who filed the application for registration of the trade-mark did so with knowledge that the trade-mark was in whole or in part a protected geographical indication.

Transitional

11.2 Notwithstanding sections 11.14 and 11.15 and paragraphs 12(1)(g) and (h), where a person has in good faith

    (a) filed an application in accordance with section 30 for, or secured the registration of, a trade-mark that is identical with or similar to the geographical indication in respect of a wine or spirit protected by the laws applicable to a WTO Member, or

    (b) acquired rights to a trade-mark in respect of such a wine or spirit through use,

before the later of the date on which this section comes into force and the date on which protection in respect of the wine or spirit by the laws applicable to that Member commences, nothing in any of those provisions prevents the adoption, use or registration of that trade-mark by that person.

193. Subsection 12(1) of the Act is amended by striking out the word ``or'' at the end of paragraph (e) and by adding the following after paragraph (f):

    (g) in whole or in part a protected geographical indication, where the trade-mark is to be registered in association with a wine not originating in a territory indicated by the geographical indication; and

    (h) in whole or in part a protected geographical indication, where the trade-mark is to be registered in association with a spirit not originating in a territory indicated by the geographical indication.

194. The portion of subsection 14(1) of the Act before paragraph (a) is replaced by the following:

Registration of marks registered abroad

14. (1) Notwithstanding section 12, a trade-mark that the applicant or the applicant's predecessor in title has caused to be duly registered in or for the country of origin of the applicant is registrable if, in Canada,

195. The portion of subsection 16(2) of the Act before paragraph (a) is replaced by the following:

Marks registered and used abroad

(2) Any applicant who has filed an application in accordance with section 30 for registration of a trade-mark that is registrable and that the applicant or the applicant's predecessor in title has duly registered in or for the country of origin of the applicant and has used in association with wares or services is entitled, subject to section 38, to secure its registration in respect of the wares or services in association with which it is registered in that country and has been used, unless at the date of filing of the application in accordance with section 30 it was confusing with

196. Section 20 of the Act is renumbered as subsection 20(1) and is amended by adding the following:

Exception

(2) No registration of 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.

1993, c. 15, s. 63

197. Subsection 29(1) of the Act is replaced by the following:

Inspection

29. (1) Subject to subsection (2), the registers, the documents on which the entries therein are based, all applications, including those abandoned, the indexes, the list of trade-mark agents and the list of geographical indications kept pursuant to subsection 11.12(1) shall be open to public inspection during business hours, and the Registrar shall, on request and on payment of the prescribed fee, furnish a copy certified by the registrar of any entry in the registers, indexes or lists, or of any of those documents or applications.

198. Paragraph 30(d) of the Act is replaced by the following:

    (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 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 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 general classes of wares or services described in the application;

1993, c. 15, s. 65(1)

199. Subsection 34(1) of the Act is replaced by the following:

Date of application abroad deemed date of application in Canada

34. (1) When an application for the registration of a trade-mark has been made in or for any country of the Union other than Canada and an application is subsequently made in Canada for the registration for use in association with the same kind of wares or services of the same or substantially the same trade-mark by the same applicant or the applicant's successor in title, the date of filing of the application in or for the other country is deemed to be the date of filing of the application in Canada, and the applicant is entitled to priority in Canada accordingly notwithstanding any intervening use in Canada or making known in Canada or any intervening application or registration if

    (a) the application in Canada, including or accompanied by a declaration setting out the date on which and the country of the Union in or for which the earliest application was filed for the registration of the same or substantially the same trade-mark for use in association with the same kind of wares or services, is filed within a period of six months after that date, which period shall not be extended;

    (b) the applicant or, if the applicant is a transferee, the applicant's predecessor in title by whom any earlier application was filed in or for any country of the Union was at the date of the application a citizen or national of or domiciled in that country or had therein a real and effective industrial or commercial establishment; and

    (c) the applicant furnishes, in accordance with any request under subsections (2) and (3), evidence necessary to establish fully the applicant's right to priority.

1993, c. 44, s. 232(1)

200. (1) Subsection 45(1) of the Act is replaced by the following:

Registrar may request evidence of user

45. (1) The Registrar may at any time and, at the written request made after three years from the date of the registration of a trade-mark by any person who pays the prescribed fee shall, unless the Registrar sees good reason to the contrary, give notice to the registered owner of the trade-mark requiring the registered owner to furnish within three months an affidavit or a statutory declaration showing, with respect to each of the wares or services specified in the registration, whether the trade-mark was in use in Canada at any time during the three year period immediately preceding the date of the notice and, if not, the date when it was last so in use and the reason for the absence of such use since that date.

1993, c. 44, s. 232(2)

(2) Subsection 45(3) of the Act is replaced by the following:

Effect of non-use

(3) Where, by reason of the evidence furnished to the Registrar or the failure to furnish any evidence, it appears to the Registrar that a trade-mark, either with respect to all of the wares or services specified in the registration or with respect to any of those wares or services, was not used in Canada at any time during the three year period immediately preceding the date of the notice and that the absence of use has not been due to special circumstances that excuse the absence of use, the registration of the trade-mark is liable to be expunged or amended accordingly.

201. Section 65 of the Act is amended by striking out the word ``and'' at the end of paragraph (d) and by adding the following after paragraph (d):

    (d.1) the procedure by and form in which an application may be made to the Minister, as defined in section 11.11, requesting the Minister to publish a statement referred to in subsection 11.12(2); and

1991, c. 45 [c. T-19.8]

Trust and Loan Companies Act

202. (1) Paragraph 37(1)(c) of the Trust and Loan Companies Act is repealed.

(2) Paragraph 37(2)(c) of the English version of the Act is replaced by the following:

    (c) with respect to any matter described in any of paragraphs (1)(d) to (f), two years.

203. Paragraphs 164(e) and (f) of the Act are replaced by the following:

    (e) a person who holds shares of the company where, by section 386 or 399, the person is prohibited from exercising the voting rights attached thereto;

    (f) a person who is an officer, director or full time employee of an entity that holds shares of the company where, by section 386 or 399, the entity is prohibited from exercising the voting rights attached thereto;

204. (1) Paragraph 236(1)(c) of the Act is repealed.

(2) Paragraph 236(2)(c) of the English version of the Act is replaced by the following:

    (c) with respect to any matter described in any of paragraphs (1)(d) to (f), two years.

205. The Act is amended by adding the following before the heading ``Constraints on Ownership'' before section 375:

INTERPRETATION

Definition of ``agent''

374.1 In this Part, ``agent'' means

    (a) in relation to Her Majesty in right of Canada or of a province, any agent of Her Majesty in either of those rights, and includes a municipal or public body empowered to perform a function of government in Canada or any entity empowered to perform a function or duty on behalf of Her Majesty in either of those rights, but does not include

      (i) an official or entity performing a function or duty in connection with the administration or management of the estate or property of a natural person,

      (ii) an official or entity performing a function or duty in connection with the administration, management or investment of a fund established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons, or moneys derived from such a fund, or

      (iii) the trustee of any trust for the administration of a fund to which Her Majesty in either of those rights contributes and of which an official or entity that is an agent of Her Majesty in either of those rights is a trustee; and

    (b) in relation to the government of a foreign country or any political subdivision thereof, a person empowered to perform a function or duty on behalf of the government of the foreign country or political subdivision, other than a function or duty in connection with the administration or management of the estate or property of a natural person.

DIVISION II

206. The Act is amended by adding the following after section 376:

Exception for small holdings

376.1 Notwithstanding section 376, where, as a result of a transfer or issue of shares of a class of shares of a company to a person, the total number of shares of that class registered in the securities register of the company in the name of that person

    (a) would not exceed five thousand, and

    (b) would not exceed 0.1 per cent of the outstanding shares of that class,

the company is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the company as a result of that issue or transfer of shares.

1991, c. 47, s. 754; 1993, c. 44, s. 239

207. The headings before section 394.1 and sections 394.1 and 395 of the Act are repealed.

1993, c. 44, s. 240

208. Sections 397 and 398 of the Act are repealed.

209. (1) Subsection 399(1) of the Act is repealed.

(2) Subsections 399(3) and (4) of the Act are replaced by the following:

Transitional

(3) Subsection (2) does not apply in respect of a government or agency referred to in that subsection that, on September 27, 1990, beneficially owned shares of a former-Act company where the exercise of the voting rights attached to those shares was not prohibited under subsection 41(2) of the Trust Companies Act or subsection 48(2) of the Loan Companies Act, as those subsections read immediately prior to June 1, 1992.

Transitional

(4) Subsection (3) ceases to apply where a government or agency referred to in that subsection acquires beneficial ownership of any additional voting shares of the former-Act company in such number that the percentage of the voting rights attached to all of the voting shares of the former-Act company beneficially owned by the government or agency is greater than the percentage of the voting rights attached to all of the voting shares of the former-Act company that were beneficially owned by the government or agency on September 27, 1990.

1993, c. 44, s. 241

210. Sections 400 and 400.1 of the Act are repealed.

211. Section 406 of the Act is repealed.

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