227 was mentioned it is submitted that there is no

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227 was mentioned.] It -is submitted that there is no evidence that confusion would resu lt between the 10 Opponents' registered, Mark a _ Hammermill" and the word "Abe~mill" now sought to be registered from the appeal which the Marks make to the eye.. The question of phonetic similarity is for the Court, but it is submitted that there is no r.isk 'of 'confusion. The Applicants have proved six years' user of their Mark; there is no evidence of actual confusion; the doubt which might 15 exist were this an application to register a new mark has been resolved and registration should be allowed. ,Section 210£ the 'I'rade Marks Acts, 1905-1919, contemplates the registration of identical marks for use on the same classes of goods. [Maeder's Application, (1916) 33 R.P.C. 77, at p. 81, was referred to.] There might be inconvenience if a new ma-rk were allowed to be regis- 20 tered ; no inconvenience can result where a mark has been used for six years. It is submitted that the Marks are not identical; they are dis-similar. " Hammermill" conveys a specific idea to the mind; "Abermill" conveys no such idea. The user of both Marks should be considered and contrasted. The Applicants' user is much great-er than that of the Opponents. [N otes of 25 Official Ru Iings, 19-29 (A) 46 R.P.C., App. (i) was referred to.] The Assistant- Registrar exercised his discretion in favour of the Applicant and distinguished the present case from that considered in the Official Ruling. It lis not disputed that there has been honest concurrent user. In the case of an application for registration of a trade mark in Part B. and under Section 21 of the Trade 30 Marks Acts, 1905:"1919, it is a condition precedent that there has been at least two years' user. There is no evidence that the present Applicants "did not " venture" to apply at once to regist-er their Mark under the Section applicable to ne\vmarks. It is submitted that the registration should be allowed. T'reuor Watson K.C. for the Respondents.-Two questions arise: (i) Is the 35 Mark sought to be registered so near to the Mark already registered as to be calculated to deceive 1 If so, there is- an express prohibition against registra- tion under Section 19 of the Trade Marks Acts, 1905-1919. (ii) Is this a case in which the discretion conferred by Section 21 of the Trade Marks Acts 1905-1919 should ibe exercised in favour of the Appli cants 1 The Mark so~ght to b~ 4{) registered should be treated as if it consisted of the word " Abermill " alone. The Court will hesitate to say that there is no reasonable probability of ,con- fusion. The exercise of considering probability of confusion is a matter in, which the Registrar has daily experience. [.A.pplication oj Ohemische Fabrik Greisheim (the Eastern Dye Works case), (1910) 27 R.P.C. 201 and In the 45 Matter of The Trade Marks of the Societe Anonymes des Vereries de l' Etoile (the Star Glass case), (1893) lO,R.P.O.
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