Thpossibility tfaeceptlon s1igiltr jt great also it

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th~_possibility t)f~aeceptlon;-"S1igil'tr-"(j't'-~great'~-"-'Also it is to be pointed out that the cases rin which Section 21 can be used are limited to those in which there has been "honest concurrent user or other special "circumstances which in the opinion of the Oourt or Registrar make it 35 "proper so to do." Those are the conditions precedent which must be ful- filled before the powers of ordering registration of the- mark icoms into play. 1 deprecate laying down any rule of interpretation Or tabulating qualifica- tions which have to be fulfilled before the Section can be used. I think we have to look at each case and form our judgment as to whether or not it falls 40 within Section 21. To predicate that certain conditions must be fulfilled would be, to my mind, to run counter to the rule of law illustrated in Sharp v. Wakefield*, and often in other cases, whereby the Oourt has to exercise its discretion anew without laying down beforehand ihe'llimits under which ita discretion will be exercised. 45 T'therefcre approach this case in this w.ay. It is one in which we have honest concurrent user proved. Then it ds possible for us to say that it is a mark which, I suppose, if a person was not clear in his diction and left out the * L.R. (1891) A.C. 173. Z 2 Downloaded from by Makerere University user on 03 September 2019
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214 No.6.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [Vol. XL/IX. In the Matter of am Applicatio·n by Alex. Pirie & Sons Ld., to register a Trade Mark. aspirate, might lead to confusion, especially, we will say, down the telephone, between the two words, but in respect of which there has been no confusion proved, for it is accepted by the learned Judge, I think, that that is so. Mr. Justice Clauson said this: "There was some sort of evidence of actual " confusion; but the Acting Registrar does not advert to this dn his Judgment, 5 " and no doubt ·thought, as I do, that actual confusion could not be taken " as proved." . Mr. Trevor lVa,tson suggested that Section 21 ought to be interpreted by considering and balancing' the prdbabilities and possibilities of confusion, He put on the one side the degree of similarity, the nature of the goods, and 10 the locality in which the goods are to be sold. On the other side he put the user during a certain amount of time, and the fact that the Applicants had originally knowledge of the Opponents' Mark. He said that those features must be weighed one against the other to see whether or not you override the possibility of confusion. 15 To my mind, those tests are imperfect, and although by a series of cases it will no doubt be revealed later on what are the limits to the application of Section 21, I think at the present time we !!111st re~~~d .. ~achcaseupon its Q.1Yn facts and decide whether or not the discretion should be exercised. As I ha~"'-said, there is not a contrast between Section 19 and Section 21. . We 20 have a case here in which there has been honest concurrent user over a period of time, and that user indicates that the Mark is of importance to the Applic- ants as identifying their goods. The user of the Opponents' Mark no doubt is valuable to them as
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  • Fall '19
  • The Bible, United States trademark law, opponents

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