From obtaining the advantage of registra tion under

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from obtaining the advantage of registra- tion under: Section 2l. For the reasons stated I agree that the Appeal ought to be allowed. Romer L.J.: I agree. I t is obviously impossible for us to interfere with the decision of the learned 45 Judge upholding, as he did, the decision of the Registrar as to the possibility of this Mark being registered under Section 19 of the Act. The learned Assietant-Iieqietrar said this: "I agree with Mr. 'I'reuor JVatson to this extent, Downloaded from by Makerere University user on 03 September 2019
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Vol. XL,JX.] REPORTS OF PATENT, DESIGN, AND TRADE MARK OASES. 217 [No.6. In the Matter of an Ap piication. by Alex. Pirie & Sons Ld., to register a Trade Mark. "that the two words 'Abermill' and' Hammerruil l ' are so similar to one "another phonetically that, if the Applicants' Mark had been a new one, I "should have been obliged to refuse the application." - Mr. Justice Clauson expressed his concurrence in that finding and, there being two concurrent 5 findings of fact, it would be wrong for this Oourt, even if it desired to do so, to interfere with such finding; but it must be borne in mind what exactly is the meaning of those findings. They do not necessarily mean anything more than this, that, df the Appellants were seeking to register the word" Abermill " as a new mark, they would not have discharged the onus that lies upon them 10 of proving that there was no reasonable probability of deception. I turn, in those circumstances, to Section 21 of the Act. The first thing to be borne in mind, in approaching that Section, is that in cases of honest concurrent user an application is -being made to register a Mark which so nearly resembles a Mark already on the Register that it is impossible to say 15 that there ds no reasonable probability of it causing deception. It must. also be borne in mind that, if the Mark, as the Applicants are applying to register it, might cause deception, but by the imposition of conditions and. ldmitations all risk of deception would be removed, the learned Registrar could impose such conditions and Iimibat.ions under Section 12, and registration could take 20 effect under Section 19; so that a Mark which falls under Section 21, in addition to being one of which it is impossible to predicate that there is no reasonable probability of its causing deception, is also one in respect of which, by the imposition of limitations and conditions, that risk of deception cannot be altogether removed. 25 I, like the other members of the Oourt, strongly deprecate any attempt to limit by rigid rules the exercise of the discretion that is conferred upon the Regi8t1'(11' or the Oourt by the Section. T!J.~ __ " has used very wide terms, and, if j t had intended the discretion given in these wide terms to be exercised within narrower limits than the words themselves would indicate, it 30 would surely have used different language. Every case under the Section must he determined on i ts own merits. I do not doub-t that in exercising his dis- eretion the
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