The TeleMark

The official publication dealing with Canadian corporate and commercial law

May 22 1996

The POLYSECUR^TM Service enables you to fulfill your duties in the event of financing secured by movable property.

POLYSECUR^TM Service

Legal counsel's inherent duties

When you are called upon to act as legal counsel on behalf of a creditor with a view to obtaining financing of a commercial nature, you are subject to what is known in banking circles as a due diligence standard of care. Consequently, you are required to take all reasonable steps in order to obtain, and to verify the accuracy of, any information which may have a material impact on the granting or on the conditions of the financing.

Not only is this duty grounded in established business practices, but it is also based on section 3.02.04 of the Code of Ethics of Advocates. Hence, you must disclose to your client the nature and scope of the problem submitted to you as well as the risks inherent in the solutions recommended. Any failure to comply with the due diligence standard of care will theretore result in an act of professional negligence whereby you will risk incurring liability. The Polysecur^TM Service is the best way for you to meet your obligation and to safeguard against any eventual claim.

The POLYSECUR^MC Service

The POLYSECUR^TM Service is subdivided into 7 distinct "OPTI^TM" segments, which may be used separately in order to comply with the requirements of each particular tinancing. These sections enable legal counsel to ensure that:

THE INTERNET and trade-mark searches:
       ANOTHER INNOVATION  BY MARQUE D'OR!

The globalization of markets now requires search houses ottering trade-mark services to demonstrate their innovative spirit in order to provide a service of superior quality which takes into account all eventualities.

In this respect, the use of the Internet as an intormation source leads to very convincing results, which tar exceed expectations. Nothing beats a concrete example to illustrate the success of this innovative strategy:

Trade-mark being searched: PINTAL *
Field of activity: Manufacturing of clothes

A tew traditional search stages:

1. The Canadian Trade-marks Register: an identical name (PINTAL) but a ditterent tield of activities  ... the search continues
2. Other government registers: (GO^TM search) no signiticant occurrence  ...the search continues
3. Non-governmental databases and registers: (IPSO^TM search) no signiticant occurrence  ...the search continues
4. Distinctiveness search: no problem  ...the search continues

Where others stop,  Marque d'Or goes further!

Internet search

1. Search engine: The exact term (PINTAL) exists on the network   ... the search continues
2. We explore the sites where the term is used and BINGO!!! PINTAL is an Italian business carrying on the exact same activities!

In the event where use of the trade-mark being searched is contemplated on an international scale, our search has enabled us to identity a potential problem and perhaps to safeguard its user from potentially serious liability.

*N.B. The trade-mark and the field of activities have been changed in order to preserve the confidentiality of our client and the order of the steps followed has been modified for the purposes of the illustration.

Government turnaround time

Since our last TELEMARK^TM, the government turnaround time has remained at a very adequate level of promptness

The tollowing is a list of the turnaround times presently in effect:

NEW DECISIONS WITH RESPECT TO NAMES

The following are the conclusions reached in tour decisions handed down by the Inspector General during the month of April:

The VOYAGES ACTION case

The decision handed down in the VOYAGES ACTION case deals with the apparent link between the applicant "VOYAGES ACTIONS TRAVEL INC." and the respondent "UNIGLOBE VOYAGES ACTION".

The Inspector General ordered the respondent to cease using its name since the words "voyages (travel)" and "action", used in each of the names, in a similar tield of activity, led one to believe that a link existed between the parties even in spite of the adding of the distinctive element Uniglobe, which was a trade-mark of the respondent.

In light of the weakness of the distinctive element "action", the strength of the word UNIGLOBE in the respondent's name and the principle at case law to the effect that a name must be considered as a whole, we express some reservations as to the correctness of this decision.

The PASCAL case

The decision handed down in the PASCAL case will probably set a precedent as it raises a number of very interesting questions of law and of fact:

• The family name or surname PASCAL had been used in various torms (corporate names and trade-marks) continuously from 1935 to 1994 when the applicants went bankrupt;
  
• The respondent commenced using the family name or surname PASCAL in 1994 as part of the assumed, trade, business or tirm name "CLUB MEUBLES PASCAL"

• 
  The Inspector General concluded that the assumed, trade, business or firm name was "not confusing" and that "fields of activity were quite different";
  
• The application was nevertheless granted pursuant to subsection 13(9) of the Legal Publicity Act, which prohibits the use of any name which is liable to mislead third persons; indeed, the family name or surname had acquired such a degree of notoriety in the Province of Quebec that its use by the respondent falsely suggested that it was associated with the applicants.

This decision is justifiable to the extent that it is intended to protect the public interest and the interests of the respondent. However, it does raise one question: despite the tact that a name is not contusing and relates to a ditterent tield of activity, is the use of the tamily name or surname PASCAL torever prohibited in the Province of Quebec? This decision illustrates the reasons why the  provincial legislator ought to emulate its tederal counterpart and place a time limit on the prohibition of use of a name no longer in use (2 years).

To obtain more intormation  regarding the abovementioned  cases, do not hesitate to ask for our  case summaries or to contact our Name Search Department.