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585, at p. 591, was referred to]. The probability of deception if registration be allowed is high. If the Court is to exercise its discretion in favour of the Applicants, balancing con- siderations must also be high; they are not. The only factor to justify this being regarded as an except.ional case is that the t.ra.de under the Applicants' 40 Mark has been greater than that under the Opponent's Mark. It is signifi- cant that as sales under the mark "Abermill" rose those under the mark " Hammermil l "fell. The Appl icants ar~ not entitled to special, consideration. They chose to build up a trade under a Mark which they might. have sought to register. The Opponents were unaware of the Applicants' Mark till July, 45 192'8. The Opponents did not acqu iesce in the Applicants' user of the mark. Heald followed-[Gutta Percha and R,ubber Ma,nufa,cturing Co. of tToronto Ld.'s Application, (1909) 26 R.P.O. 428 was referred to]. In that case the applicants had six years' honest concurrent user, the Opponents had no user. It is submitted that the case was decided not on the grounds of honest con- 50 current user but on the grounds of other special circumstanoes provided by-the Downloaded from by Makerere University user on 03 September 2019
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210 NO.6.] REPORTS OF PATENT, DESIGN, AND T'RADE MARK CASES. [Vol. XLIX. In the Matter of an Application by Alex. Pirie <:& Sons Ld., to register a Trade J.llark. Trade Marks Act, 1005, Section 21. [Massachusetts Saw lVorks Application, (1918) '35 R.P .C. 137, at p. 141, was referred to]. The over-riding question is always probability of confusion. Here the Registra.r and Mr. Justice Clauson have both found that there will be such probahility if. registration be per- mitted. It is submitted tha.t for these reasons the discretion should not be 5 exercised in the Applicants' favour and the appeal should be dismissed. Whitehead K.O. replied-[The judgment of Lord Warrington of Clyffe In the Matter of an .Ap plico.tion. by Nicholson &: Sons, Ld., for a Trade Mark and In the Matter of Bass Ratcliff &: Gretton, Ld.'s, Trade Mark, not yet reported,* was referred to]. It is submitted that the discretion to be exercised under 10 Section 21 of the Trade Marks Acts, 1905-1919, is of the same order as that to be exercised under Section 19 of the Acts. [Kerly on Trade Marks, 6th Ed. 277, was referred to]. There is no evidence that members of the publ.ic know of the Opponents' goods by the name " Hammerrni ll ". The specific idea con- veyed to the mind by the word "Hammermill" prevents the possibility of 15 confusion. [He was then stopped.] Lord Hanworth, M.R.: This is an appeal from a decision of Mr. Justice Clauson, who reversed an Order made by the Registrar upon an Application before him, the Registrar, to register a Trade Mark. The Application was made by Messrs. . Alexander Pirie &: Sone, Limited, and was opposed by the 20 Hammermill Paper Company, a company whose business is carried on in the United States" but who have a business in this country. .
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