Another phonetically that if the applicants mark had

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" another phonetically that, if the Applicants' Mark had been a new one, I " should have been obliged to refuse the Application. "Mr. Bray's main contention, however, was that the Applicants, by virtue " of their honest concurrent user of their Mark, are entitled to registration "under Section 21 of the Act of 1905 as amended by the Act of 1919. In the 5 "first place then, under this Section, I must consider whether the user by " the Applicants can be said to have been honest. Mr. Trevor Watson., while "he .di d not allege that the Applicants had adopted their Mark with any "fraudulent intent, argued that it was adopted by the Applicants with " knowledge of the Opponents' Mark and therefore that their user of it could 10 " not be said to be bona fide. In this connection ~ referred to the remarks " of Mr. Justice Younger in In re an Application by the Massachusetts Saw " Works, 35 R.P.C. 137, as reported on page 148, where the learned Judge said " that, while he did not in any way suggest that the then applicants' extensive "use of their 'Victor' Mark had been other than honest, the user was 15 "modern and the greater part of it had taken place with full knowledge of "the opponents' old' Victory' Mark, the existence of which the then applic- " ants had previously accepted as a complete impediment to the registration c: as a 'I'rade Mark of their word 'Victor.' . Now in the present case, the " Applicants' Mark ! Abermill' was suggested by Mr. Waterman, one of their 20 "travellers, who derived iit by contracting the words 'Aberdeen Mill,' by fC which name the Applicants' Mill at Aberdeen is known. Mr. Waterman "admits that he had previously heard of the Opponents' , Hammermill ' Mark, ", but he declares that their word was not present to his mind when he invented " the word 'Abermill.' I think that the present case differs from that of the 25 "Massachusetts Saw Works in at least two particulars. In the first place, "the difference between the Marks 'Victor' and 'Victory' in that case was "much smaller than the difference between the Marks 'Abermill' and '" , Hammermill' with which I am here concerned, and while it is difficult to " think that a trader could fail to notice the possi bili ty of confusion occur ring 30 " between two so closely similar words as ' Victor' and' Victory,' the similarity " between the Applicants' and the Opponents' Marks is not, I think, so obvious, co and might well escape the notice of a, person whose mind was not specially " directed to the question. Then, as the learned Judge in the ill assach.usette . " Saw Works case pointed out in the part of his Judgment to which I have 35 "referred, the question of the registration of the Mark 'Victor' had pre- '~v,iously been contested between the same parties and had been decided "adversely to the then applicants. On the whole, I cannot find that the "a,doption and user by the Applicants of the Mark no"v put for war.d for ,, registration has been so lacking in good faith that, if they are otherwise 40 "qualified for registration under Section 21, I ought to refuse their " Application.
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  • Fall '19
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