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The above definition of a design is practically taken Sects. from the definition of an ornamental design contained 60, 61. in 5 & 6 Vict. c. 100, s. 3. The definition of a useful design was by the 6 & 7 Vic. c. 65, s. 2, restricted to designs for "shape" or "configuration": as to which see Reg. v. Russell, 16 Q. B. 810, and Margetson v. Wright, 2 De G. & Sm. 420.
This distinction is now abolished, and it is immaterial whether the design be useful or ornamental.
By the 13 & 14 Vic. c. 104, s. 6 (now repealed), sculpture and models might be registered by the Registrar of Designs. This power has been omitted in the present Act, as on an average only three designs a year had been registered for several years.
The right obtained is not to apply the design to "Copyany article but only to articles in the class or classes right." in which it is registered.
61. The author of any new and original design Definition shall be considered the proprietor thereof, unless he "of proprietor." executed the work on behalf of another person for a good or valuable consideration, in which case such person shall be considered the proprietor, and every person acquiring for a good or valuable consideration a new and original design, or the right to apply the same to any such article or substance as aforesaid, either exclusively of any other person or otherwise, and also every person on whom the property in such design or such right to the application thereof shall devolve, shall be considered the proprietor of the design in the respect in which the same may have been so acquired, and to that extent, but not otherwise.
This definition is taken from sect. 5 of the Copyright of Designs Act, 1842.
Four persons are here mentioned as coming under the term "proprietor."
1. The author of the design.
2. A person acquiring it for a good or valuable consideration.
3. A person acquiring a limited right in it for value. 4. A person on whom it devolves.
tion for registra
Practice on application.
Registration of Trade Marks.
62. (1.) The comptroller may, on application by or on behalf of any person claiming to be the proprietor of a trade mark, register the trade mark.
(2.) The application must be made in the form set forth in the First Schedule to this Act, or in such other form as may be from time to time prescribed (a), and must be left at, or sent by post to, the Patent Office in the prescribed manner (8).
(3.) The application must be accompanied by the prescribed number (y) of representations of the trade mark, and must state the particular goods or classes of goods (d) in connexion with which the applicant desires the trade mark to be registered.
(4.) The comptroller may, if he thinks fit, refuse to register a trade mark, but any such refusal shall be subject to appeal to the Board of Trade (e), who shall, if required, hear the applicant and the comptroller, and may make an order determining whether, and subject to what conditions, if any, registration is to be permitted.
(5.) The Board of Trade may, however, if it appears expedient, refer the appeal to the Court (5); and in that event the Court shall have jurisdiction to hear and determine the appeal, and may make such order as aforesaid.
A trade mark is defined in sect. 64.
An application for registration of a trade mark is
(a) Form F, Sched. 2. Trade
Mark Rules, 4.
(B) Trade Mark Rules, 7-16. (7) Three, for classes 1-22 and 36-50; four, for classes 23
(8) Trade Mark Rules, 20-24. (e) Ib. 23.
(S) Trade Mark Rules, 23.
made on Form F (Trade Marks Forms), stamped with Sect. 62. a 5s. stamp.
Stamped forms may be obtained at the Patent Office and the chief post offices in the United Kingdom (for list of places, see Trade Mark Instructions). A separate application must be made for each class. The application may be signed by the applicant or an agent duly authorised in writing (Trade Mark Instructions, 12). If the applicant be a firm, a member may sign as “a member of the firm." In the case of a company, the secretary or other principal officer may sign "For the company." An agent must sign as agent" (Trade Marks Rules, 7, 8, Instructions, 12). The application is to contain a representation of the mark, and three additional representations for such class on Form G (Trade Marks Forms) are to accompany it, except in application to register marks in Classes 23 to 35 inclusive, where the number of additional representations is to be two for each class. If it is desired to send a representation larger than the space on the Form, then the mark is to be backed with linen and folded and affixed to the Form (Trade Marks Instructions, 17; Rules, 13).
Where the mark consists of or includes words printed in other than Roman characters, a translation of such words is to be given at the foot or back of the applition Form and of each additional representation (Trade Marks Rules, 15; Instructions, 15).
In the case of marks on metal goods, other than Metal cutlery, edge tools and raw steel, it should be stated in goods. the application of what metal or metals the goods are made (Trade Marks Rules, 12; Instructions, 14).
When the application relates to classes 23-25 (i.e., Cotton cotton, yarn or thread, cotton piece goods and other goods. cotton goods), the applicant is to state by what name the mark claimed would be referred to in the invoices of his house (Trade Mark Instructions, 15).
Where a series of marks is being registered under Series of sect. 66, a representation of each mark of the series is to marks. be made or affixed upon the application form and also upon the necessary number of additional representation forms (Trade Marks Rules, 14; Instructions, 18).
Where there is an indication on the face of the mark Restriction of the goods to which the mark is applied, the claim for of claim. registration must be restricted to those goods only (Trade Mark Instructions, 32).
tion may be sent by
The application may be sent by post, addressed to the Comptroller, Patent Office, Trade Marks Branch, 25, Southampton Buildings, London, W.C., and its receipt will be acknowledged (Trade Marks Rules, 9, 16: Instructions, 8). The day on which the application is received will, if the mark be registered, be the date of registration (Trade Marks Rules, 32).
The application will be advertised in the Trade Marks Journal, and on the demand of the comptroller the applicant is required to furnish a wood block or electrotype for each mark in each class, except Classes 23-25, relating to cotton goods, for which no blocks or electrotypes are required. In the case of a series, a wood block or electrotype is to be furnished for each mark of each class claimed. The wood block or electrotype is not to exceed 8 inches broad by 10 deep, and where it exceeds 2 inches in depth an additional charge is payable of 28. for every inch or part of inch beyond the 2 inches. The wood block or electrotype must correspond exactly with the representation of the mark, and the number given by the comptroller is to be marked on the side. The blocks or electrotypes will not be returned (Trade Marks Rules, 25-28; Instructions, 21-28).
A mark will not be registered until two months after its advertisement, and then if there be no opposition, the comptroller may enter it upon the register on receipt of the prescribed fee, i.e., 1. for each mark for each class; for a series of marks, 17. for the first, and 5s. for every additional mark in each class. The fee is to be paid by sending Form I (Trade Marks Forms) to the comptroller stamped with the proper amount. Á notice of the registration will be sent to the applicant (Trade Marks Rules, 30, 33; Instructions, 2, 21). Death of If the applicant dies before the registration is comapplicant pleted the comptroller may, if satisfied of the applicant's before re- death, enter on the register as proprietor, the person owning the goodwill of the business, if such ownership be proved to the satisfaction of the Comptroller (Trade Marks Rules, 31).
Refusal to register.
The comptroller may refuse to register the mark, but before doing so he is to give the applicant ten days' notice of the time when he may be heard personally or by his agent. Within five days from the date when such notice would be delivered in the ordinary course of post, the applicant, if he desires to be heard, is to give the comptroller notice to that effect (see Forms used in case
of Patents, Form E). The applicant will be heard on Sects. the day appointed and the decision will be notified to 62-64. him (Trade Marks Rules, 17-19).
If the final decision be adverse to the applicant he may, Appeal to within one month from the date of the decision, appeal Board of to the Board of Trade by giving notice at the Patent Trade. Office in Form H (Trade Marks Forms) bearing a 17. stamp. The notice is to be accompanied by a statement of the grounds of appeal and of the applicant's case in support, written upon foolscap paper (one side only), with a margin of two inches on the left hand side. A copy of the notice of appeal is to be sent to the Secretary of the Board of Trade, 7, Whitehall Gardens, London. If the Board of Trade hear the appeal they will give seven days' notice (or shorter notice if they think fit) to the comptroller and applicant, and will also give directions as to evidence. If the Board refer the appeal to the Court they will give directions as to how it is to be so referred (Trade Marks Rules, 20-24).
As to registering the same mark more than three times, see sect. 72.
As to registering additions, see sect. 74.
As to the effects of registration, see sects. 75—77.
63. Where registration of a trade mark has not Limit of been or shall not be completed within twelve months time for proceeding from the date of the application, by reason of default with applion the part of the applicant, the application shall be cation. deemed to be abandoned.
This section is new. The Trade Marks Acts of 1875-77, did not contain any provisions relating to failure to proceed with an application.
The section is restricted to applications not completed “by reason of default on the part of the applicant," and will not apply to applications not completed through other causes, such as by appeal to Board of Trade.
64. (1.) For the purposes of this Act, a trade Conditions mark must consist of or contain at least one of the of registrafollowing essential particulars (a) :—
(a.) A name of an individual or firm printed, im
(a) See Instructions, 7, 29-32.
tion of trade mark.