published a circular containing (inter alia) a representation of the device which they now seek to register as a trade-mark. The said circular and representation were registered at Stationers' Hall on the 18 in the names of the appellants, and the copyright in the same is now and always has been vested in the appellants. of 3. The said device consists of [describing it]. The said device was drawn on the instructions of the appellants, and was entirely novel in design, and it is a distinctive device. The appellants have extensively published and circulated the said circular and the said representation and device amongst persons concerned in the indiarubber and hose trade, and amongst their customers and others from the said 18 to the present time. of the appellants 4. By their application, numbered sought to register the said device as a trade-mark in Class 50, for use in connection with the hose manufactured or sold by them. The said application was opposed on the grounds following that the opponents are the proprietors of a trademark in Class 50, for hose, registered on the of 18 under No. ; and that they had (as they alleged) used for a considerable time past a device consisting of [describing it] as an advertisement and description of their hose in price lists, circulars, &c.; and that the mark for which the appellants are applying for registration had (as was alleged) such a resemblance to their said registered trademark and advertisement as to be calculated to deceive. 5. The trade-mark of the opponents consists of [describing it]. It is totally different in design and appearance from the said device of the appellants, and the said device bears no resemblance whatever to it. 6. It is untrue that the opponents have ever used any device similar to or resembling the said device of the appellants, or such as could be mistaken for or confounded with the said device referred to in the appellants' application, or such that the registration of the latter as a trade-mark would be calculated to deceive. 7. The opponents exhibited to their declaration in opposition certain copies of price lists and advertisements, and among them a price list marked containing a figure numbered No. 1. The said price list and figure were first issued and published on the vertisement, that is to say, of 18 as an adyears after the appel lants had commenced to issue and publish their said device. The said figure No. 1 consists of [describing it]. The said figure is quite different in design and appearance from the said device of the appellants, and the said device bears no resemblance whatever to it. 8. The application was heard before the learned registrar of 18 sitting for the comptroller, and on the 9. The appellants crave leave to refer, for the purposes of their appeal, to all the evidence used at the hearing of their said application and of the opposition (e), and also to the written decision of the learned registrar. The appellants submit that, under the circumstances hereinbefore stated, the decision of the learned registrar should be reversed, and the appellants' device No. above mentioned should be admitted to registration, on the following grounds:(1.) Because the said device is a distinctive device which Grounds of the appellants are entitled to use and register as a appeal. trade-mark under the above-mentioned Acts. (2.) Because the learned registrar was wrong in holding that it has been the custom in the hose trade to advertise pictures of hoses resembling the said device, whereas no such custom was established by the evidence, and such custom, if established, would not be a good ground of objection to the registration of the said device. (3.) Because the learned registrar was wrong in holding that the said device resembles the said trade-mark of the opponents numbered No. whereas the said device does not resemble the said trade-mark at all, or (alternatively) not so nearly as to be calculated to deceive. (4.) Because the learned registrar was wrong in holding that the said device resembles the said figure No. 1, and such resemblance, if it existed, would not be a good ground of objection to the registration of the said device. The matters with which this appeal is concerned are of great importance to the appellants, and they are desirous that the same may be referred to the decision of the Court under sect. 69 of the above-mentioned Act (ƒ). (Signed) (e) See Rule 26, p. 598. (f) If the Board of Trade see no reason for differing from the decision of the comptroller, they generally refer the appeal at once to the Court, and so save a step. 8. FORM OF REFERENCE OF THE APPEAL TO THE COURT BY THE the Referring to the notice of appeal by in this matter dated I am instructed to inform you that the Board of Trade have deemed it expedient to refer this appeal to the Court by virtue of the provisions of sub-sect. 4 of sect. 69 of the Patents, Designs, and Trade-Marks Acts, 1883 and 1888, and have, pursuant to Rule 23 of the Trade-Marks Rules, 1890, directed the appellants to make application by motion, summons, or otherwise, as they may be advised, to the Chancery Division of the High Court of Justice to hear and determine the said appeal, and that notice of such application be served upon the Comptroller-General of Patents, Designs, and Trademarks, and upon [the opponents], and that [the opponents], in default of being served within two months from this date with notice of any such application as aforesaid by the appellants, be at liberty to apply to the Chancery Division of the High Court of Justice as they may be advised. And that upon the hearing of any such application as aforesaid, the appellants, the said [the opponents], and the Comptroller-General be respectively at liberty to adduce such evidence as they respectively may be advised. I am, dear Sir, yours truly, Solicitor, Board of Trade. 9. NOTICE OF MOTION FOR THE DETERMINATION OF THE APPEAL. In the High Court of Justice, Chancery Division, Mr. Justice 18, No. . [Heading as in the Counter-statement above, p. 632.] TAKE NOTICE that the Court will be moved before the Honourable Mr. Justice of at 10.30 in the forenoon on the 18 or so soon thereafter as counsel can be heard by counsel on behalf of the above-mentioned applicants , that the appeal of the applicants from the decision of the Comptroller-General of Patents, Designs, and Trade-marks upon their above-mentioned application (which has been referred by the Board of Trade to the Court) may be heard and determined: And for an order directing the Comptroller-General of Patents, Designs, and Trademarks to proceed with the registration of the trade-mark referred to in the said application. (Signed) 18 Solicitors for the above-named To the Comptroller-General of Patents, and To [the opponents]. K. And in the matter of the Patents, Designs, and Trade- TAKE NOTICE that this Court will be moved before the on the of 18 at 10.30 in the forenoon, or so soon thereafter as counsel can be heard, by counsel on behalf of (the applicant) of (address), for an order that the register of trade-marks kept under the above-mentioned Acts may be rectified (as follows): (1.) By the removal of the mark therein registered for class and numbered (2.) By limiting the registration of the mark therein registered (&c.) for use in connection with part of the goods comprised in the said class only, namely, (3.) By expunging from the said register part of the said mark No. , namely, (4.) By adding to the entry therein of the said mark No. a disclaimer of any right on the part of the registered proprietor of the said mark to the exclusive use of part of the said mark, that is to say, the words (a), Or that such other order for the rectification of the said register may be made as to the Court shall seem fit. (a) For other forms of rectification see above, p. 231. For forms of orders, see Seton, 5th ed. vol. 3, p. 1987. |