I have already referred to the authorities which make

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I have already referred to the authorities which make it clear that, at all events in regard to the exercise of the powersconf.erred by Section 19, I must have very great regard to the views expressed by the Registrar. I am not sure that thoscauthoribies apply quite so fully to Section 21; but I recognise that, 45. even as regards Section 21, I must not lightly overrule the Registrar's decision. The i ntenbion .of the Section has been authoritatively stated. by Mr. Justice 'Sarqamt in Maeder's case, (1916) 33 R.P.,d., at page. 77, in these words: "It " seems to me that the dntention was to allow the Court to weigh against a; Downloaded from by Makerere University user on 03 September 2019
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206 NO.6.] REPORTS OF PATENT, DESIGN, AND T'RADE MARK CASES. [VoL XLIX. In the Matter of an Application by Alex. Pirie & Sons Ld., to register a Trade Mark. "slight possibility of deception, or a slight possibility of confusion, in the " minds of the public, the commercial claims which a proprietor of a common " law trade mark might have acquired through a considerable amount of con- ,', current user." To this I would venture to add that, in my judgment, the tribunal which 5 acts under this Section has to weigh on the one hand the possibility of decep- tion which; ex hypothesi, must, in every case in which the Section is involved, exist in some degree, and the inconvenience to the public generally, and to the proprietor of a similar registered trade mark in particular, of the appearance on] the Register of two nearly identical marks, and it has to weigh on the 10 other hand the hardship that will be suffered by the applicant in view of his honest concurrent user or of other special circumstances if he be refused ~egistration. In this comparative' estimate of inconvenience on the one hand and hardship on the other, this tribunal must, :in my judgment, take into account the inconvenience which will exist if it can be truly said that either 15 the marks or the goods or the places and circumstances of us-er are the same or substantially the same, and a fortiori, if there is identity or substantial identity as regards more than one of these factors (see as to this the Ruling, which appears to me to be entirely satisfactory, of the Registrar noted on page (i) of the Appendix to 46 Reports of Patent Cases). Further, the tribunal, in esfim- 20 ati ng the hardship, ought to take into account the circumstances of the con- current user as well as its honesty. I should be sorry to brand as dishonest a trader who adopts a trade mark which he honestly thinks to be sufficiently distinctive as compared with a, competing mark but which the Reoistra» or the Court, on mature consideration, decides to have such a near resemblance to 25 the competing mark as to be calculated to decei ve; but still, in considering whether to exercise in his favour the discretion conferred by Section 21, I should feel bound to give due weight to the circumstance that his mark must be taken to have been all along insufficiently distinctive, though he erroneously
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