Thought otherwise the man who in fact was ignorant of

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thought otherwise. The man who in fact was ignorant of the existence of the 30 competing mark is, as it seems to me, in a more favourable position as regards satisfying the tribunal of hardship than the man who knew of the competing mark and knew of, though he under-estimated, the danger of the Court holding his mark to be calculated to deceive. Above all, I should deem it my duty so to weigh the competing factors as to avoid giving any colour to the idea that 35 a trader, who knows of a competing trade mark and knows that he can get his trade mark registered only if he can show within Section 19 that it is not calculated to deceive, can put himself in a more advantageous position by taking the risk of building up commercial claims on his doubtful mark and, after due time, coming to the Court to claim indulgence under Section 21. 40 Turning to the facts of the present case and treating myself as exercising the discretion unfettered by the acting Registrar's decision, I should feel bound to hold that the inconvenience of putting the "Abermill" mark on the Register for the, same goods competing in the same market as the " Hammer- mill" mark far outweighs the hardship entailed on the Applicants by refusing 45 them registration of a mark which: (1) was adopted with the knowledge of the existence of the Opponents' mark; (2) is a mark which both the acting Registrar and I consider so nearly to resemble the Opponents' mark as to be Downloaded from by Makerere University user on 03 September 2019
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Vol. XLIX. ] REPORTS OF PATEN'r, DESIGN, AND TRADE MARK CASES. [No. 6~ In the Matter of an Applica,tion by Alex. Pirie & Sons Ld., to register a Trade lvlark. calculated to deceive; and (3) is used for substantially the same goods com- peting in the same market. The Applicants have, in my view, taken the risk of building up their commercial claims on a mark for which they did not venture, when they began using it, to claim registration; and it is not for 5 them, now that the risk has turned against them, to set up hardship in the matter. This being my judgment of the position, it··is, in my view, my duty to over-' rule the acting Eeqistrar'» decision on the ground that he has given insufficient weight to the factors which, as I have explained above, lead me to the con- 10 elusion which I have reached. My order will therefore be to reverse the acting Registrar's decision and order that the registration of the Trade Mark referred to in the Application be refused. The Applicants must pay the costs of this appeal of the Opponents and of the Registrar. I~ The Applicants appealed. Oounsel (instructed as above stated) were the same as in the Oourt below, except that Sir Stafford Cripps K.O., appeared with J. Whitehead K.O., and F. E. Bray for the Appellants.
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  • The Bible, United States trademark law, opponents

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