REGISTRATION-continued. be allowed to cumber the Register with this mark; and that as they had misrepresented their mark as registered their application to register it ought to be refused. The Registrar decided in favour of the Applicants on all three grounds and allowed the application. The Opponents appealed. The appeal was referred to the Court.-Held, by Kekewich J., that the term "Kinahan's Whisky" had no secondary meaning signifying the Opponents' whisky only, and that the proposed Trade Mark was not calculated to deceive; and also that the conclusions of the Registrar on the other two points were sound. The appeal was dismissed with costs. The Opponents appealed to the Court of Appeal. -Held, that Kekewich J. and the Registrar were not wrong in holding that the Respondents had equal rights for the purpose of the registration in the use of "Kinahan's Whisky," and that the statement made in the Price Lists was not sufficient under the circumstances to disentitle the Respondents to registration. The appeal was dismissed with costs. IN THE MATTER OF AN APPLICATION BY LYLE AND KINAHAN LD., pp. 37 and 249. 66 2. Effect of-"The registration of a Trade Mark does not confer any right "at all of the description there pointed to, but it does confer a right, "and the only right is the right to prevent anybody else from using "that Trade Mark as a mark for their goods, but it does not give the registered owner of the Trade Mark any right to use that Trade "Mark if the Trade Mark would deceive. I conceive that, if at the date "when application is made to register a Trade Mark there is no ground "of objection upon the footing that it will be calculated to deceive, "and if subsequently by alterations in the character of the business of "the two parties respectively the use of the Trade Mark will be "calculated to deceive and a passing-off action were brought by one party against the other, it would be no defence at all on the part of "the owner of the registered Trade Mark to say-Deception or no "deception I am entitled to do it because that is my registered Trade "Mark.' That could not be advanced for a moment. In other words, "the registration of a Trade Mark does not confer any right to do that "which could not have been done irrespective of the Trade Mark, in "the sense of doing any acts which would be competition in business. "The only right which it confers is a right to restrain others from "using that Trade Mark." Per BUCKLEY L.J. in LYLE AND KINAHAN'S APPLICATION, p. 262. 66 3. Marks held not to be marks requiring to be associated under Section 24 of the Trade Marks Act, 1905.-Identical mark for different goods. Same proprietors.-"Closely resembling."-Associated marks.Assignability.-Costs.--Trade Marks Act, 1905, Sections 12 (2), 22, 24, 27, and 48. The Applicants, who were the registered proprietors of the Trade Mark "B.S.A." for small-arms in Class 19, applied for the registration of the same Trade Mark for cycles and automobiles in Class 22.--Held, reversing the decision of the Registrar, who had required the marks to be "associated" under the provisions of the Trade Marks Act, 1905, that Section 24 of the Act applied, not to cases of an identical mark of the same proprietor, but only to cases where registration was sought for a mark "so closely resembling a "Trade Mark of the Applicant already on the Register for the same "goods or description of goods" as to be calculated to deceive or cause confusion, and that as registration was here sought in respect of entirely different goods, it should be granted without 66 association." The discretion vested in the Registrar under Subsection 2 of Section 12 REGISTRATION-continued. of the Trade Marks Act, 1905, must be exercised subject to the provisions of Section 24. IN THE MATTER OF THE BIRMINGHAM SMALL ARMS Co.'s APPLICATION FOR A TRADE MARK, p. 563. 4. On the comparison of the Trade Mark as applied for with another registered Trade Mark, held that there was no probability of confusion.—Firm's name represented in a special manner.-Resemblance to a compound mark.-Calculated to deceive.Discretion.-Registration allowed.-Costs.-Trade Marks Act, 1905, Sections 9 (1), 19 and 48. The Applicant, trading as "Shamrock & "Co.," sought to register in Class 39 for picture post-cards a Trade Mark consisting of a shamrock leaf with the stalk continued so as to form "& Co." The Registrar required the consent of the proprietors of an old mark registered for stationery consisting of an inverted shamrock-leaf bearing the letters "M. W. & Co." and surmounted by a Royal Crown. The Applicant having failed to obtain this consent appealed. The proprietors of the registered mark did not appear to contest the application and no evidence was filed.-Held, that there would not be any misleading results from the two marks being on the Register at the same time, and the appeal was allowed, but the Applicant was ordered to pay the costs of the Registrar. IN, THE MATTER OF SHAMROCK & Co.'s APPLICATION, p. 569. 5. Mark held to be publici juris.-Rival claims for registration of same mark.-Reference to Court to decide rights.-Mark common to the trade.---Costs.-Trade Marks Act, 1905, Section 20. J. H., who had used the words "The Thunderer " upon a certain type of whistles of his own manufacture for a considerable number of years, applied to register these words as a Trade Mark. A. De C., who had also used the words upon similar goods, applied shortly after for registration of the same to be granted to him. Upon reference to the Court under Section 20 of the Trade Marks Act, 1905, it was held, that the mark was publici juris, and that neither party had any right in connection with it, and that each party should pay its own costs; J. H., the applicant in the Motion, paying the costs of the Registrar. IN THE MATTER OF HUDSON'S APPLICATION FOR A TRADE MARK, p. 582. 6. Probability of confusion likely to cause danger to the public. Character or quality of the goods. Onus of proof.-" Motricine." -Resemblance to Trade Mark "Motorine" previously registered.Calculated to deceive.-Direct reference to character of goods.-Trade Marks Act, 1905, Sections 9 (4), 11, 19, and 21. In 1901 the P. P. C. Company registered "Motorine" in Class 47 as a Trade Mark for lubricating oils and sold large quantities of lubricating oil under that name, which became identified with their goods. In 1907 a French Company, which had dealt largely in petrol spirit under the name "Motricine 99 on the Continent and had registered that name as a Trade Mark for petrol spirit in various European countries, applied in this country for the registration of "Motricine as a Trade Mark for spirit for motive power purposes in Classes 47 and 50. This was opposed by the P. P. C. Company. The products of the Applicants and the Opponents were both manufactured from petroleum, but the former was a thin, odorous and highly explosive fluid, the latter thick, viscous, non-odorous and non-explosive. Both were sold in cans and in the ordinary course of trade in the same shops and to the same class of customers. The Opponents opposed the registration of "Motricine" as REGISTRATION-continued. being calculated to deceive within Section 11 of the Trade Marks Act, 1905, and as being likely to cause danger to the public and injury to the Opponents' trade by an explosive fluid being used as a non-explosive fluid. The Registrar refused to register" Motricine," whereupon the Applicants appealed and also moved the Court to expunge the Opponents' Trade Mark "Motorine" from the Register.-Held, that there was a possibility of confusion between the two words as names for the respective goods, and that the word "Motricine" could not be registered as the Applicants had not discharged the onus of proving that the use of it would not be calculated to deceive; that, as the word was accordingly under Section 11 not registrable, the Court could not allow registration subject to conditions under Section 21 of the Act; and that the word "Motorine " had no direct reference to the character or quality of the goods which it designated, and was therefore a good Trade Mark under Section 9, paragraph 4, of the Trade Marks Act, 1905. The appeal and the motion therefore failed and were dismissed with costs. Eno v. Dunn (7 R.P.C. 11; L.R. 15 App. Cas. 252) followed. IN THE MATTER OF THE APPLICATION OF THE COMPAGNIE INDUSTRIELLE DES PETROLES TO REGISTER A TRADE MARK, p. 585. 7. “Apollinaris" declared to be deemed to be a distinctive mark under Section 9 (5) of the Trade Marks Act, 1905, but an undertaking was required.--Special application for registration of a word as a distinctive mark.-Special undertaking required by the Court to be given by the Applicants. The proprietors of the wellknown Apollinaris spring applied to register the word "Apollinaris " in Class 44 in respect of mineral water. The application was a special one under paragraph 5 of Section 9 of the Trade Marks Act, 1905, the Applicants alleging that the word "Apollinaris" was a distinctive mark. The word "Apollinaris" had formerly been registered for mineral water in the name of the Apollinaris Co. Ld., but it had been removed from the Register by an Order of the Court, it being held in that litigation that the word "Apollinaris " was geographical, and did not come within any class of words which could be registered under the Patents &c. Act, 1883, or the Patents &c. Act, 1888. The present application was supported by evidence to show that the word was in fact distinctive of the Applicants' mineral waters.-Held, that the word "Apollinaris" distinguished the goods of the proprietors, and a declaration was made that it ought to be deemed a distinctive mark within the meaning of Section 9 of the Trade Marks Act, 1905, but the Applicants were required to give an undertaking not to use the mark except in respect of water from the Applicants' property at Neuenahr or in the neighbourhood thereof. IN THE MATTER OF AN APPLICATION TO REGISTER 66 APOLLINARIS AS A TRADE MARK, p. 436. SCOTCH PRACTICE. See RECTIFICATION, No. 4. TRADE MARKS ACT, 1905. Section 3 IN RE GESTETNER'S TRADE MARK, p. 545. TRADE MARKS ACT, 1905-continued. Section 9 IN THE MATTER OF AN APPLICATION TO REGISTER "APOLLIN"ARIS" AS A TRADE MARK, p. 436. IN RE GESTETNER'S TRADE MARK, p. 545. IN THE MATTER OF THE APPLICATION OF THE COMPAGNIE Section 11 IN THE MATTER OF THE APPLICATION OF THE COMPAGNIE Section 12 (2)— IN THE MATTER OF THE BIRMINGHAM SMALL ARMS Co.'s Section 19 IN THE MATTER OF SHAMROCK & Co.'s APPLICATION, p. 569. IN THE MATTER OF THE APPLICATION OF THE COMPAGNIE Section 20 IN THE MATTER OF HUDSON'S APPLICATION, p. 582. Section 21 IN THE MATTER OF THE APPLICATION OF THE COMPAGNIE Section 24 IN THE MATTER OF THE BIRMINGHAM SMALL ARMS Co.'s IN THE MATTER OF THE APPLICATION OF THE COMPAGNIE BOORD & SON v. THOM AND CAMERON LD., p. Section 48 698. IN THE MATTER OF THE BIRMINGHAM SMALL ARMS Co.'s IN THE MATTER OF SHAMROCK & Co.'s TRADE MARK, p. 569. IN THE MATTER OF "APOLLINARIS" APPLICATION, p. 436. TRADE NAME. 1. Plaintiff Society held entitled to maintain an action to prevent the use by non-members of a name indicating membership. Members of Plaintiff Society known as "Incorporated Accountants."Use of that designation by individual Defendant and holding out by the Defendant Society of its members as entitled to use that designation. -Injunction granted. The Society of Accountants and Auditors was incorporated in the year 1885 to provide a central organisation for accountants and auditors, to elevate the status of the profession, to provide for its better definition and protection by a system of examinations and certificates, and to encourage a greater degree of efficiency in book-keeping. There were district Societies connected with the Society. The Society published the "Incorporated Accountants' "Year Book" containing a list of its members, and the "Incorporated "Accountants' Journal." It claimed that the title of "Incorporated "Accountant" had become identified with its members. In 1905 a Company (limited by guarantee) called the London Association of Accountants Ld. was incorporated with objects of a similar nature. This Company claimed the right for its members to use the term "Incorporated Accountant," alleging that it was a statutory term which had not the meaning claimed for it by the Society and the use of which was open to the members of the Company. The Society brought an action against the Company and also against one of its members, who had used and claimed the right to use the designation " Incorporated "Accountant London Association," for an injunction to restrain the use of the designation "Incorporated Accountant" by the Company and its members.-Held, that the expression "Incorporated Accoun"tant" was not a descriptive term, but meant a member of the Plaintiff Society; that what the Defendant member was doing was calculated to lead people to the belief that he was a member of the Plaintiff Society; that the unauthorised use of the expression inflicted a legal injury on the Plaintiff Society, because it was a matter of pecuniary value to the Plaintiff Society that it should have as many members as possible; and that the Plaintiff Society was entitled to injunctions. against both the Defendant member and the Defendant Company, which was holding out to accountants that if they became members of the Company they would become entitled to the use of the words "Incorporated Accountants." The injunctions were, however, suspended on terms in the event of an appeal. The Defendants were ordered to pay the costs of the action, except so far as such costs had been increased by an allegation of fraud against the Defendant Company. SOCIETY OF ACCOUNTANTS AND AUDITORS v. GOODWAY, p. 159. 2. Defendant restrained from carrying on a business under a name which she had assumed for business purposes, the Defendant having assigned or agreed to assign the goodwill and the exclusive right to use such name to the Plaintiffs' predecessors in business. Assumed name.-Sale of business, goodwill, and exclusive right to use of name.-Use of name by vendor after sale.— Interlocutory injunction.-Appeal and cross-appeal.-Motion to commit.-Trial of action.-Plaintiffs held not to have disentitled themselves to relief by their conduct.-Injunction granted.-Judgment for Plaintiffs. In 1895 the Defendant commenced the business of a complexion specialist under the assumed name of “Mrs. Pomeroy." In 1896 a Company," Mrs. Pomeroy Ld.," was formed to carry on the business, the Defendant holding a preponderating proportion of the shares. The Company acquired a large business connection. In May, |