than an applicant for registration, since the comptroller's discretion (b) has been exercised in his favour, and the onus of showing that the registration was made without sufficient cause is cast upon the person applying to vary it (c). The reasons for removing a mark may be classified as follows: the registered proprietor is not the person entitled to use it (d); the mark was not capable of registration (e), or it fell within the restrictions forbidding registration contained in the Acts (ƒ); the registration was procured by a material misstatement (g). circumstances There does not appear to be any jurisdiction under the Alteration of section to remove a mark because the registration, rightly subsequent to made at its date, has by subsequent events become a cause registration. of grievance to the applicant. If, for instance, the regis- Abandontered proprietor ceases to carry on business (), agrees with ment or mis another trader not to use his mark or to have it removed from the register, or uses it fraudulently or deceptively, it would seem that no redress can be had under the section. For the words "made without sufficient cause are in the past tense, and they relate to the date of registration (i), and the term rectification is only applicable where there has been some mistake or error in the original registration (i). And this construction accords with the decisions that no events subsequent to the time of registration can be appealed to by the registered proprietor to defend his mark (k). user of mark. (3.) If part only of a composite mark is objectionable, Partial that part may be removed. This course was adopted in removal. (b) Chap. IV., p. 64; but see above, p. 229. (c) See Leonard and Ellis' Tm., 26 C. D. 288 (1884), C. A.; Benjamin Edgington, Ld. v. John Edgington & Co., R. P. C. 513; 61 L. T. 323 (1889, Kay, J. (e) Chap. IV., p. 60. (f) Chap. X., p. 175. (g) Baker v. Rawson, 45 C. D. 519; 8 R. P. C. 89 (1890), North, J. (h) As regards the removal of an abandoned mark, see below, p. 291. (i) Ward, Sturt, and Sharp's Tms. 50 L. J. Ch. 347 (1881), Hall, V.-C. (k) Above, p. 230. Deceptive mark wholly removed. Registration of a disclaimer. Biegel's Trade-Mark (1), where the applicants, Younger & Co., complained that the use of three interlaced triangles in the respondent's label caused it to resemble too closely their own label, which contained three superimposed solid triangles similarly placed. The remainder of the label was distinctive, and the applicants did not complain of it. The order made was to strike out the triangular device. Where, however, the registered mark consisted of a fir tree, with the words Forrest above and London below printed in large letters, and the proprietor, being a Coventry watch-maker, having no connection with the business formerly carried on by Forrest in London, the mark was deceptive, Chitty, J., directed the whole mark to be struck out, but without prejudice to any application the respondent might make to register the fir tree alone (m). In the case last cited it was argued on behalf of the comptroller that sect. 90 does not authorize the alteration of a registered mark, and that any application to vary must be made under sect. 92; but this contention is opposed to the express words of the first mentioned section, and it would leave unprovided for the large number of cases which do not fall within sect. 92, and among others all those arising on hostile applications. (4) Registration with a disclaimer has already been discussed (n). Edge's Trade-Mark (0) is an example of the compulsory registration of a disclaimer. The respondent had registered the words Edge's Filtered Blue, and a label containing these words with certain devices. The judge held that the word filtered was either descriptive or deceptive, and therefore the respondent could have no exclusive right to use it. He accordingly directed the first mark to (2) 4 R. P. C. 525; 57 L. T. 247 (1887), Chitty, J.; Blair v. Stock, 52 L. T. 123 (1884), Kay, J.; Strathmore struck out of mark. (m) Hill's Tm., 10 R. P. C. 113 (1893). (n) Chap. IX., p. 164. (0) 8 R. P. C. 207 (1891), Stirling, J. (see above, p. 138); Burland v. Broxburn Oil Co., 42 C. D. 274; 6 R. P. C. 482 (1889), Chitty, J., (Washerine); Hayward's Tm., 54 L. J. Ch. 1003 (1885), Kay, J., are other instances. be removed from the register, and the exclusive right to the use of filtered in the other to be disclaimed. tion (5) A limitation restricting the registration of a trade- Limitation of mark to those goods for which the registered proprietor the registraactually used the mark, and to which alone the goodwill to particular of the business transferred to him with the mark by the goods; former proprietor extended, was adjudged to be notified upon the register in Edwards v. Dennis (p). And in The Milkmaid Brand Case (q), where the defendant's mark too nearly resembled the previously registered mark of the plaintiffs, it was ordered that the registration of the former should be confined to goods for which the plaintiffs' mark was not registered. market. form of mark. So the Court may under the section order a note of an to particular undertaking by the registered proprietor restricting the use of the mark, in accordance with an agreement between the proprietor and the applicant, to be entered on the register (»'). (6) The only variation in the form of a registered mark Variation in ordered under sect. 90, which occurs in any reported case is variation by striking out part of the mark (s). Any alteration which substantially changed the mark would be open to the objection that it would cause a new mark to be entered on the register, the application for which had not been advertised (†), and which had not been approved by the comptroller. (7) A variation of the date of registration was directed Variation of date of entry. in Hayward's Case (u). There a mark was registered in 1885 (p) 30 C. D. 454 (1885), C. A. Co. v. R. P. C. 28 (1886), Kay, J. 666 (885), Chitty, J.; cross undertakings for local user. (t) See above, pp. 230 and 232. which make registration conclusive evidence of exclusive right of user should run from the date of the actual registration instead of from the date of the application to register. (8) The register cannot be rectified under sect. 90, where a mark has been wrongfully registered in the name of someone other than the proprietor, by expunging the name and substituting that of the person entitled to the mark. The whole entry may be expunged, but the true proprietor must be left to make a fresh application for registration, which will be advertised in the ordinary course, and may lead to opposition (). So where an agent wrongfully registered his principal's trade-mark in his own name, Jessel, M.R., refused to order the name to be changed (y). And the same rule is applied where the entry is innocently made in the wrong name by mistake, as by a partner in his own name instead of his firm's (≈), or by an agent acting for two principals, in the name of the wrong principal (a). In the former case the proper course is for the registered owner to assign, and for the assignee's name to be registered under sect. 87 (b). But in a case where a partner registered the mark in his own name thus"Arthur Rust, trading as T. W. Rust & Co."-Jessel, M.R., allowed the names of all the partners to be substituted for "Arthur Rust (c); and this case was distinguished in the later judgment, on the ground that the true proprietors, the firm, were there expressly mentioned on the register. And where the owners of the mark changed the name under which they were carrying on (x) Rivière's Tm., 55 L. J. Ch. 545, cited above, p. 224. (y) Marler's Tm., 44 L. T. 98 n. (1878). (2) Farina's Tm., 44 L. T. 99 n. (1881), Jessel, M.R. (a) Kingsford & Son's Application, 6 R. P. C. 413; 41 L. T. 426 (1889), Kay, J. (b) Greenlees' Tm., 9 R. P. C. 93 (1892), Stirling, J.; and Farina's Tm., supra. Sect. 70 (trade-mark to be assigned only with goodwill) is not an obstacle to such assignment, Welcome's Tm., 32 C. D. 213; 3 R. P. C. 76 (1886), Chitty, J. (c) Rust's Tm., 44 L. T. 98 n. (1880). business, Stirling, J., on an application under the section, allowed the new name to be entered, with a note that the firm formerly traded under the old name (d). In Re The Australian Wine Co. (e) a mark had been registered in his own name by the sole consignee of wines from a particular vineyard, the consignee intending to use the registration solely for the protection of such wines, and so long only as he should remain consignee. The mark was transferred by his trustee in bankruptcy, with the consignee's business, to a purchaser who procured the entry on the register of his own name as proprietor. Subsequently, upon the application, under sect. 90, of the then owners of the vineyard, Chitty, J., directed their names to be entered as proprietors of the mark in lieu of that of the purchaser of the consignee's business, on the ground that the mark was registered in the first instance for the benefit of the owner of the vineyard, not for that of the owner of the business. And in a case where the registered proprietor of a mark had assigned her business and the use of the mark for six years to the respondents, and they had procured the registration of their own names as assignees, upon their application it was ordered that the register was rectified by removing their names and restoring that of the original proprietor (f). Procedure on an Application under sect. 90. "The Court" in England is Her Majesty's High Court "The Court." of Justice (g), or, with reference to marks of which the registration was applied for in the Manchester TradeMarks Office (h), the Palatine Court of Chancery (i); and those Courts have jurisdiction to rectify a registered mark, (d) The Plumbago Crucible Co.'s Tms., 7 R. P. C. 282 (1890); cf. applications under sect. 92, below, P. 248. (e) 61 L. T. 427 n. (1885). (f) Re Arril, 20th April, 1888, Stirling, J.; Sebastian, 3rd ed. P. 404. 26. (g) Sect. 117. (h) Chap. VII., p. 103. (i) Sect. 112a, Act of 1888, sect. |