[45] McCain does not argue that the Judge erred in quoting the following passage from Remo Imports Ltd. v. Jaguar Canada Ltd., 2005 FC 870, 41 C.P.R. (4th) 111 at para. 53 (Remo Imports), for the legal test for acquiescence:
The criteria needed to establish acquiescence are the following. 1. Something more than mere delay is required. Silence alone is not sufficient to bar a proceeding […]; 2. the rights holder must know of its right and must know of the other party's breach of that right […]; 3. the rights holder must encourage the other party to continue the breach […]; and 4. the other party must act to its detriment in reliance upon the encouragement by the rights holder […].
[46] Neither does McCain argue that the Prothonotary erred in relying on Omark Industries, Inc. v. Sabre Saw Chain (1963) Ltd., [1976] F.C.J. No. 303, 28 C.P.R. (2d) 119 at 137 (F.C.T.D.) (Omark) to support the following list of requirements for an acquiescence defence:
(i) the second person must be mistaken as to his own legal rights; (ii) the second person must have expended some money or done some act on the faith of his mistaken belief; (iii) the patentee must know of the existence of its own right which is inconsistent with the right claimed by the second person; (iv) the patentee must know of the second person’s mistaken belief in its rights; and (v) the patentee must have encouraged the second person in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting the patentee’s legal right.
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