40 then mr trevor watson attempted this task that you

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40 Then Mr. Trevor Watson attempted this task, that you have to balance Section l{t against Section 21, that Section 21 is in a sense an addendum to Section 19, and it is only if you find yourself very nearly within Section 19, hut not quite, .that then you can look for the wider powers of Section 21 and ask for the exercise of them. It appears to me that Section 21 must be treated 45 independently for the purposes of this case. I do not feel able to differ from' the views that have been expressed by the Ilegistrarand by Mr. Justice Olaueon, 'that '. the right course would have been to refuse the Application, if the Mark had oeen'''·~a~ri.ew' one, under Section 19. I ,am content to accept Downloaded from by Makerere University user on 03 September 2019
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Vol. XLIX.] iEPORTS' OF PATENT, DESIGN, AND TRADE MARK CASES. 213 [No.6. In the Matter of an Application by Alex. Pirie &: Sons Ld., to register a Trade i.llark.· that view, although I do not hold a definite oprmon that, if it had been necessary to examine the facts upon which that conclusion was reached, I should necessarily have come to the same conclusion; hut I start with 'the acceptance of the view adopted by the Registrar and by Mr. Justice Clauson ; 5 in other words, Section 19 does not avail to secure the admission of the Mark to the Register. I pass, therefore, to Section 21. I do not find myself able to agree with the observations, or rather the limitations, suggested by Lord Justice Sargant, then Mr. JusticeSargant, as to the purpose of Section 21. In the Matter of 10 an application by Joseph Emil Mueder ( (1914) 33 R.P.C. 77) in reference. to Section 21 Mr. Justice Sargant said this, at page 81: "Then what is the "eff.ect of the Section ~ It seems to me that it gets rid of the prima facie cc disability imposed on the registering author ity by Section 19, and enables " a trade mark which is either identical with an existing trade mark or nearly 15 "identical with an existing trade mark to be registered in the case either of "honest concurrent user or other special circumstances; that is to say, it, "in my opinion, relaxes the strict rule which had otherwise bound the " registering authority under the previous legislation in ,a certa.in Iimdted class "of cases. It seems to me that the intention was to allow the Oourt to '20 "weigh against a slight possibility of deception, or a slight possibility of "confusion, in the minds of the,' public, the commercial claims which a pro- "prietor ofa 'common law trade mark might have acquired through a " considerable amount of concurrent user." With great respect to so high an 'authority as an expositor of trade mark law, I find that Se.£i!9_Jl .. ~,~J._js .. a. 25 Sect ion which does not carry with it a limitation as to bhere being a slight possibility of deception, for its words indicate that the Registrar may permit the registrat.ion of the same trade mark, or of nearly identical trade marks, for the same goods by more than one proprietor'; It seems to indicate that the powers of the Oourt can he exercised even when there is likely to be 30 confusion between the marks, I cannot, therefore, read into Section 21 some limita~i()n as to
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