Identifying their goods but the applicants have a far

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identifying their goods; but the Applicants have a far larger sale of their goods, and it would be unfortunate for ~:their ._trade 25 if they were unable to register the Mark. Under those circumstances fit appears to us that the Court ma'y._~.E~!.!!!.~ the regis~~~~.i~I!...,Q.i_t.his_~Mark, '. even .', if i~were-dee..m~Jl"_tQ..~~jQ.entical, or nearly identical, with the Trade Mark of the Opponents, 30 With regard to the question of any limitation, Or the like, it does not appear necessary to impose that. The Marks are sufficiently distinctive, and the user justifies the claim made by the Appellants that the discretion under Sect.ion 21 should be exercised lin their favour. For these reasons the appeal must be allowed, with costs here and below, 35 and an Order must be made to restore the Order of the Registrar and to allow the registration of the Mark. Lawrence L.J.-I agree. In the present ease the Iceqistrar, in the exercise of his discretion, has per- mitted the registration of the Appellants' Mark. Although the decision of 40 the Registrar is not conclusive, and under Section 8, subsection 2, of the Act of 1919, th~e~~~~!!.}~, enti rely open .to the COUtt, yet the decision of the Iieqistro»: must' still carry considerable weight with any Court or bribunal which has to review that decision. (See per Viscount Cave, Lord Chancellor, in ilfcDo1.lJell's Application, (1927) 44 R.P.C. 335, at page 341.) 45 Under Section 19 of the Act, no trade mark which is identic.al with a trade mark already on the Register, or which so nearly resembles such a trade mark as to be calculated to deceive, can be registered without an Order of the Court, unless it be an old mark, that is to say, a trade mark used before the .13th Downloaded from by Makerere University user on 03 September 2019
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Vol. XLIX. J REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. 215 [No.6. In the Matter of an Application by Alex. Pirie &: Sons Ld., to register a Trade ilfark. of August, 1875. Mr. Justice S aroant; in the case of ill aeder' s Application, considered the meaning of the words "so nearly resembles such a trade mark as to be calculated to deceive". With regard to those words he said at page 81 of the report in 33 Reports of Patent Cases : "I think that phrase means, ~ H so nearly identical as to be confusing. I do not think that the phrase " 'calculated to deceive' in that Section has quite the same meaning as " , calculatedto~'-aeceive' in Section 11. I think it is a milder form of " expression." He thus came to the conclusion that the phrase mea~~,,_~,r<~o,. "nearly identical as to be confusing?" and I agree with that construction. 10 The-R~<g~sirar"came to the conclusion-c-and it is one in which OLAUSON J. con- curred-that the two words " Abermill" and " Hammermill" were so simi lar to one another phonetiCarry'liTiat~'<T£'"<tlie"AppeIrants)~trade' mark had been ltl new one, he would have been obliged to refuse an application to-register under Section 19.
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