The acting registrar however took the view that he

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The acting Registrar, however, took the view that he ought to allow the Application to proceed and to utilise the dispensing power vested in him under, Section 21 of the Act of 1905 as amended by the Act of 1919, which enables him under certain circumstanoos to permit the registration of nearly identical ~ marks for the same goods or description of goods by more than one proprietor. The circumstances under which this dispensing power can be exercised are stated in the Section thus: "In the case of honest concurrent user or of other " special circumstances which in the opinion of the Oourt or Registrar makes " it proper" to utilise the power. ' 10 It appears that the Opponents registered their Trade Mark on the 23rd of May, 1923. The Appbicants used their Trade Mark from the 31st of May, 1923. The Applicants invented their Trade Mark honestly. They knew" of the Opponents' use of the word " Hammermill " ; but they adopted the word " Aber .. mill" as an abreviation of " Aberdeen Mill," they having manufactories in or la near Aberdeen, and it apparently did not occur to them that the word" Aber- mill" so closely resembled the word " Hammermi ll " as to be calculated to deceive. Since 1923 they have built up a considerable trade under the word "Abermill." It appears, however, that the goods to which the two words are applied are (save that they are, of course, the goods of the Applicants and 20 Opponents respectively) substantially the same, the places and ci rcumstanoes of user of the' Marks are the same or substantially the same in so far, at all events, that the goods to which the Marks are appl ied are in competition in the home market and to some extent, whether this be material or be not material, in markets overseas. It appears that the Applicants' sales under th~ir Mark 25 from 1923, when they first began to use their Mark, to the end of 1928 have been considerably greater than the Opponents' sales in this country under their Mark from 1920, when they first began to use in this country the Mark which they registered in 1923, to the end of 1928. The Opponents had used their Mark in the United States of America from as early as 1911. 30 There ,was some sort of evidence of actual confusion; but the acting Registrar does not advert to this in his judgment and no doubt thought, as I do, that actual confusion could not be taken as proved. On these facts the acting Iieqietrar expressed the view that, on the whole, he could not find that the adoption and user by the Applicants of their Mark had 35 been so Iacking in good faith that, if they were otherwise qualified for registra- tion under Section 21, he ought to refuse their Application. He then turned to consider whether the Applicants' user had been sufficient to bring them within Section 21, and, after comparing the sales under the two Marks in this country, he decided that, on the whole, after weighing the two sides, the Applicants had 40 made out their case for registration under Section 21.
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  • The Bible, United States trademark law, opponents

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