Ought to he attached to the decision of the registrar

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ought to he attached to the decision of the Registrar, but of course his decision, as I have already _ pointed out, is not conclusive, and this -Court is bound to exercise its own discretion under Section 8, subsection (2), of the Act of 1919. Apart from the effectprodueed on lny mind by the decision of the Registrar, I have come to the clear conclusion that, if the matter had come before the :) Oourt in the first instance (as it would have done before the amending Act of 1919), the Oourt ought to have permitted registration of the Appellants' Trade Ma-rk. The Mark was adopted by the Appellants honestly without any ulterior motive and without any thought of the Respondents' Mark. There is nothing to suggest that Messrs. Pirie & Sons in adopting this Mark wanted to obtain 10 the benefit of' any advantage which the Respondent Oompany had gained in this country by the sale of their paper in the United Kingdom. The explanation given by the Appellants as to the origin of their Mark negatives any suggestion of deception practised hy them. After the adoption of their Mark, the Appellants sold large quantities of 15 their paper under it openly in the same market as that in which the Respondents' pap-er was sold. It is said that the Respondents did not know it, but certainly the distributing agents-not the agents of the Respondents but the agents of the export company-who were selling the Respondents' paper in the United Kingdom knew of it as long ago as 1925, if not before. The 20 Appellants have built up a very considerable trade in this country under their Mark, far Iarger in fact that the trade built up under the Respondents' Mark "Hammerinill." This trade has been built up over a period of six years before 1928, and in my opinion it would be a hardship on the Appellants far out- weighing a.ny possible hardship to the Respondents if the Appellants were to be 25 deprived of the benefit they would derive from the registration of their Mark. Personally, I am not at all impressed by the suggestion that the two Marks will in practice lead to confusion. T4e same goods have been sold under the two Marks concurrently in this country for six years, and the Respondents have been unable to prove a single instance of confusion. I do not forget the 30 three occasions on which it was suggested that confusion had resulted, but I con- cur with the learned Judge in thinking that no single instance of confusion has been established. Bearing fin mind that, if any such confusion had exist-ed it was of the utmost importance to the Respondents to produce evidence of that fact, I draw the inference that, although they have searched and 35 endeavoured to find instances of confusion between the two Marks, they have failed. In these circumstances the argument although forcibly put that these Marks must inevitably cause confusion ~f the Appellants' Mark is allowed to he registered does not carry much weight. Even if there were anything in that argument, I think that this is a case in which some danger of confusion 40 ought not to prevent the Appellants
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  • Fall '19
  • The Bible, United States trademark law, opponents

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