Whitehead ko for the appellants after stating the

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Whitehead K.O .. for the Appellants (after stating the Applic.ation and the Opposition).-The Assistant-Comptroller, acting for the Registrar, exercised 20 a discret-ion given to him by Section 21 of the Trade Marks Acts, 1905-19'19, and decided to allow the registration to proce-ed. The Opponents appealed and Mr. Justice Clauson reversed the decision of the Registrat: on the grounds that the discretion had been wrongly exercised. [Sections 19 21 and 41 of The Trade Marks Acts, 1905-1919 were read.] Section 21 25 contemplates the registration of identical marks in respect of the same class of goods, and no pertiod of user is prescribed. In the present ease there had heen nearly six years' concurrent user. The Opponents are an American corporation. They began to use their Mark dn the United States- in 1908. Their Mark was first used in this country in 1920. 30 Their Mark " Hammermill" was registered in Great Britain on the 23rd of May, 1923. The Opponents' Mark was widely advcrt.ised in the American papers some of which circulate in this country. The Opponent company have spent about £600 on direct advertising in the United Kingdom and since the date of registration their English distributors have spent about £245 per 35 annum on advertising the Opponents' goods in this country. The Applicants adopted the words now sought to be registered on the 28th of May, 1923, and have sold paper so marked since June of that year. The Applicants' sales in Great Br ita.in have increased year by year very rapidly; the sales of the Opponents have diminished. There is no suggestion that the Mark sought to 40 be registered was dishonest in its inception. In February, 1925, the Appl.ica.nts sent to F. Johnson &~ Co., Ld., the Opponents' English distributors, a. sample book of "Abermill Bond" paper. Johnson &: Co, complained of the use of the word "Abermill" and reported the matter to the Opponents' exporting company, but nothing was done. On the 11th of October, 1926, the Opponents. 45 complained of the sale hy the Applicants of paper marked" Abermill" in the Straits Settle.ments, but the matter was dropped. In September, 192.8, Johnson &: Go. wrote to the Applicants with regard to their use of the word" Abermill." The Applicants referred Johnson &: Co. to correspondence between the Applic- ants and the Opponents and nothing further was done. Apart from the Downloaded from by Makerere University user on 03 September 2019
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208 NO.6.] REPORTS~-'OFPATENT, DESIGN, AND TRADE MARK CASES. [Vol. XL,IX. ln'the Mattero! an Application.by Alex .. Pirie'& Sons Ld., to register a Trade Mark. evidence in reply, the Opponents' evidence does not allege confusion. No witnesses were called. Mr. Justice Clauson held that no confusion had been proved. [Counsel read the decision of. the Assistant-Comptroller and .referred to Reddaw'aY's Appl£cation, (1927) 44 R.P.C. p~ 24, at p.a6.; Mocl)» .. well's Applic- ation, (1927) 44 R.P.C. 335, atpp. 341, 342; Liverpool Electric ,Cable Uo.i« 5 Applica.tion, (1929) 46 R.P.C. 99, at p. 120; Mo eeachueet.t« Saw Works Applica~ tion, (1918) 35R,.P.O. 137, at p. 148, and In theA/atter of an Ap'p'lication by Nicholson & Sons, Ld., for a Trade ~/ ark, and in the Matter of Bass, Ratcliff &. Gretton, Ld.'s Trade Mark, (1931) 48 R.P.C.
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