Serving s 20 25 director he merely gave details of

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SERVING SUGGESTION ••.. 10 15 20 25 director. He merely gave details of the use of the mark and its promotion. In relation to use the evidence showed that the "Treat" range of syrups was introduced in 1986, with the maple flavour. Other flavours came in and by 1991/92 the turnover was £1.88m. In relation to promotion there was little 30 advertising to the public as such, though there was evidence of special offers and advertisements on Silver Spoon sugar. The evidence did not make it explicit that in fact all use had been accompanied by prominent use of the words "Silver Spoon". 35 I think the Registrar was wrong to accept this evidence as demonstrating that the mark was "capable of distinguishing" for the purposes of section 10 of the 1938 Act. Mere evidence of use of a highly descriptive or laudatory word will not suffice, without more, to prove that it is distinctive of one particular trader - is taken by the public as a badge of trade origin. This is all the more so when the 40 use has been accompanied by what is undoubtedly a distinctive and well- recognised trade mark. Moreover the annual turnover reached, £1.8m (or about 4m units) is not a vast amount for a consumer item to be found in most of the supermarkets in the land. However I am not concerned with section 10 because, following the coming into force of the Trade Marks Act 1994 the registration was 45 transferred to the Register kept under the Trade Marks Act 1994 and has effect as if registered under the 1994 Act 5 . 50 1994 Act, Schedule 3 paragraph 2. Downloaded from by Makerere University user on 03 September 2019
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35 [No. 9] Chancery Division 287 Jacob J. 10 15 The defendant is a member of the Tomkins group of companies. It uses "Robertson's" for a range of jams and preserves. "Robertson's" is a household word for such products. It seems that in the 1990's the overall market for these products has, with changing tastes, been shrinking. So Robertson's, in 1994, (with the assistance of an agency called "Blue Banana") set about devising a new kind of sweet spread. They produced a toffee flavoured spread, launched in September 1995. It comes in a slightly oval jam jar, with a typical circular lid. The label is primarily dark mauve (with words such as "yum yum", "fab", "luscious") faintly legible. The key wording on this background is "Robertson's Toffee Treat" coupled with a description "Irresistibly rich toffee spread". "Robertson's" is in clear white capital lettering. "Toffee Treat" is in a fancy script. "Toffee" is at least twice the size of "Treat". The word "New" also appears in a flash. This is appropriate for the product has no exact equivalent in the market. An example of the most important part of the label is as follows:* 20 25 30 40 45 50 The product was, when introduced, truly novel. In supermarkets it comes on the shelves containing jams and preserves. It is not presented on the same shelves as the Silver Spoon Treat syrups. Robertson's see their product as primarily competing with other spreads (e.g. jams) and particularly chocolate spreads. I did not understand this evidence to be challenged.
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  • Fall '19
  • The Land, Makerere University, SONS LTD, James Robertson, Jacob J

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