Vol xlix in the matter 01 am application by alex

  • No School
  • AA 1
  • 24

This preview shows page 18 - 19 out of 24 pages.

[Vol. XLIX. In 'the Matter 01 am' Application by Alex. Pirie &: Sons Ld., -to register a Trade J.lfark. further and differed .Irom .the Registrar as to the exercise of his discretion under Section 21, -in the case of there being honest concurrent user. He therefore set aside the Order for registration of the mark, and it is' .from that decision that the appeal is brought to this' Court. 'There are really only the two Sections that we have to consider, Section 19 5 and Section 21. There is no question that the onus lies upon the Applicants, that is upon the Appellants, to satisfy the Oourt that they are entitled to have their mark registered, and in most cases it would be for them to show that there was no possibility of confusion arising; but the real question here is: What is the meaning of Section 21, and when ought it to come into play ~ 10 I will say a word, and' only a word, in order to dispose of it, on the question of the discretion of the Registrar. Mr. Justice Clauson. has set aside the exercise of that discretion so far as it related to Section 21. The force of the discretion of the Regist'iYlr was dealt with by the House of Lords in the case of Banham v. Reddaway and again in klcDowell's case «1927) 44R.P.O. 335). 15 I have put those two cases together, to summarise what I understand is the direction now given by .the House of Lords to this Oourt, in the words which I used in the Applicat1:on by the Liverpool Electric Gable C'ompany, Limited «1926Y 46 R,.P.O. 99, at page 120). I do not desire to alter or to add to those words. I will say this, .that, quite shortly put, the rule is this: It is a matter 20 where the Iieqietrar has to adjust the various considerations which he has to take into account, and -the£?~!.t.ought to he very slow t? upset his decision, M-r. Justice Ola.uson, g iving the close attention which he always, gives to these and all 'other matters, came to the conclusion that he did not agree with the exercise of the discretion of the Registra1', and we have once more to consider 25 the matter on appeal. W,e have here a case in which there was an honest choice of this word " Abermill" and an honest user in an increasing trade over a period of six years, not ~ very long period, but still a substantial period, and we have a case of the user of the "Hammermill" mark in a trade which is not very 30 large but which is, I dare say, of value and importance to the owners of the "H'ammermill" Mark. It must always be a matter of consideration to he weighed by the Court as to whether or not the user has been of such a length of time as would justify it being caIled a user within the meaning of Section 21. Mr. Trevor Watson has criticised the length of time during 35 which" Ahermill Bond" has been used. I thinkin all cases the Court would have to consider the circumstances under which the mark has been used, and for what length of bime, It would be impossible to say that in all cases a particular span of time must be accomplished before it can be treated as justifyi;ng a user within Section 21.
Image of page 18
Image of page 19

You've reached the end of your free preview.

Want to read all 24 pages?

  • Fall '19
  • The Bible, United States trademark law, opponents

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes
A+ icon
Ask Expert Tutors