Distinctive character is one of degree the proviso

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distinctive character is one of degree. The proviso really means "has the mark acquired a sufficiently distinctive character that the mark has really become a trade mark." In the case of common or apt descriptive or laudatory words compelling evidence is needed to establish this. And in particular mere evidence of extensive use is unlikely to be enough on its 35 own. Of course the power of advertising may be able to turn almost anything (save a pure description) into a trade mark, but it must be shown in a case of this sort that the mark has really become accepted by a substantial majority of persons as a trade mark - is or is almost a household word. 40 My findings on the facts here fall a long way short of this. Indeed even the suggested 60% figure put forward for British Sugar falls short. I do not think the mark has been shown to have a distinctive character and accordingly I propose to declare the registration invalid pursuant to the provisions of section 47(1). Apparently, and somewhat oddly, I do not revoke the registration (revocation is 45 dealt with under section 46) but I should like to hear counsel on what I am to do. It seems very odd to leave the mark on the Register. This is a matter on which I may need the views of the Registrar. 50 Printed by BDC Printing Services Ltd, Derby for the Patent Office 5/96 Downloaded from by Makerere University user on 03 September 2019
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  • Fall '19
  • The Land, Makerere University, SONS LTD, James Robertson, Jacob J

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