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I do not see my way to differ from that concurrent, finding, and 15 I all}. prepared to accept it for the purposes of my Judgment. The question then arises whether the Court ought, lin the circumstances of this ease, to permit the registration of the Appellants' Trade Mark under Section 21. That Section confers a wide discretion on the Oourt and Eeqistrar, in certain circumstances, to permit the registration of a trade mark 20 which is identical with, or nearly identical with, a trade mark on the Register, and for the same goods or description of goods by more than one proprietor. One of the grounds on which the Oourt or the Registrar may exercise the discretion conferred by Section 21 is where there has heen honest concurrent user of the trade mark sought to be registered. It is quite plain that the 25 discretion thus conferred on the Court or Registrar is unfettered in terms, and I think it would he wrong for any tribunal which has to exercise that discretion to lay down any hard and fast rule as to how it ought to be exercised. The Legislature has not imposed any limitations, and that fact shows that eV~EY_J~~~.~ ,~a:s .intended tobe ;~eal~,with,8Jceor?iIlg~Q!t§ ownspecip.l 30 facts. For this reason I deprecate the citabion of cases in which, under other circumstances, theOourt has exercised its discretion under this Section, one way or the other. The main burden of the argument on the part of the Respondents in the present case was that, if registration of the Appellants' Mark were per~ 35 mitted under Section 21, there would be placed on the Register a, Trade Mark which might be confused with the Respondents' Mark. It seems to me that that is just the case in which the jurisdiction conferred by Section 21 comes into play. As pointed out by Mr. Justice Sargant in jl/aeder's case, Section 21 relaxes the strict rule laid down by Section 19, and it is in eases where 40 Section 19 prevents registration that Section 21 enables the Oourt or Registrar to place a trade mark on the Register. In my opinion, therefore, the mere fact that there may be confusion between the two Marks in no way precludes the Oourt or Registrar, under proper circumstances, from permitting regis- tration of the second Mark. 45 Having dealt generally with the effect of these two Sections, I come to the only point which is material in the present case : .A.ye or no, in the special circumstances of this, case, ought the Oourt to exercise the jurisdiction con- ferred upon it by Section 21? In deciding that question, I think great weight Downloaded from by Makerere University user on 03 September 2019
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216 REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [Vol. XLIX. In the Ma,tter 01 an Application by Alex. Pirie & Sons Ld., to register a Trade Mark.
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