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such substance as aforesaid in the class or classes 1 in which the design is registered.
1 For classification of articles of manufacture and substances, see third schedule to designs rules, page 255.
61. The author of any new and original design shall be considered the proprietor thereof (a), unless he executed the work on behalf of another person for a good or valuable consideration, in which case such person shall be considered the proprietor,1 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.
1 For rules as to the registration of subsequent proprietors, see ss. 22–27.
(a) It is manifest by the above definition that there may be many proprietors of the same design. If the original proprietor did not grant an assignment or a license to use his invention, he would be the sole proprietor, but when he does he immediately becomes not the sole proprietor, but a proprietor, for the grantees become equally proprietors with him. See the remarks on this point by the late Master of the Rolls in the case of Jewitt v. Eckhardt, 8 Ch. D. 409.
Registration of Trade Marks.
62. (1.) The Comptroller (a) may, on application, Application by or on behalf of any person (b) claiming to be tion. the proprietor of a trade mark,1 register the trade mark (c).
(2.) The application must be made in the form set forth in the first schedule to this Act,2 or in such other form as may be from time to time prescribed (d), and must be left at, or sent by post to,3 the Patent Office in the prescribed (e) manner (f).
(3.) The application must be accompanied by the prescribed number of representations (g) of the trade mark, and must state the particular goods or classes of goods (h) in connection with which the applicant desires the trade mark to be registered.5
(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, 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 (i) ;
Application of firms or bodies corporate.
and in that event the Court shall have jurisdiction to hear and determine the appeal and may make such orders as aforesaid (j).
1 If the application is made by a firm, it may be signed by one or more members of the firm; or if by a body corporate, by the secretary or principal officer of the body corporate. See rule 7, page 266.
The application, or any other communication between the applicant and the comptroller, may be made by or through an agent, duly authorised to the satisfaction of the comptroller.
If the application is made to register a trade mark used used before before the 13th August, 1875, it must contain a statement of time during which, and of the person by whom it has been used. See rule 10, page 267.
2 The form F, in the first schedule to the Act, has been application. altered and amended by the Trade Marks Rules, and the form F, in the second schedule to the rules, page 290, must be used in substitution thereof. See rule 4, page 265. If the mark includes words of foreign character, a transcharacters. lation must be given. See rule 15, page 269. Notices. 3 For mode of sending notices, see rule 16, page 269. 4 Three representations are required, except in classes sentations. 23 to 25 inclusive, where four are required. They must be supplied upon paper of the size stipulated in rule 11, page 267, and must be of a durable nature. One must be affixed to the application; the others must be upon separate half sheets. In the case of trade marks exceeding the limits of the foolscap paper of the size mentioned in rule 11, page 267, such marks may be pasted on separate sheets of foolscap, or in such form as the comptroller may think most convenient. In exceptional cases, if the trade mark cannot conveniently be shown by a representation, a specimen or copy of the trade mark can be deposited at the patent office, and a reference thereto made in the register.
Classification of goods.
5 For the purpose of registration, a classification of goods is given in the third schedule to the trade marks rules.
See page.308. The comptroller determines, in case of doubt, to which class any particular description of goods belongs. See rule 6, page 266. When the application is for the registration of a trade mark on any metal goods other than cutlery, edge tools, and raw steel, the applicant must state of what metal or metals the goods are made. See rule 12, page 267.
Before adversely exercising this discretionary power, Discretionthe comptroller must give notice to the applicant. For of compprovisions as to notice by the comptroller and notice of applicant's wish to be heard, see rules 17-19, page 270.
date of re
The time fixed by the rules for the registration of trade Time and marks is as soon as may be after the expiration of two months gistration. from the date of the first advertisement of the application. See rule 30, page 274. The date of the trade mark is the date on which the application for registration was received by the comptroller. See rule 32, page 275.
Notice of registration and of the advertisement in the Notice. official paper is sent by the comptroller to the applicant. See rule 33, page 275.
7 The notice of appeal must be left at the patent office Appeal to within one month of the decision' appealed against, and Trade. must be accompanied by a statement of the grounds of appeal, and a copy thereof must be sent to the Secretary of the Board of Trade, No. 7, Whitehall Gardens, London. The Board of Trade have full power either to hear or to refer to the court; but if they decide to hear, they will give notice of the time and place of hearing to the comptroller and the applicant, and give such directions as to evidence and otherwise as they may think fit. See rules 20-24, pp. 270, 271.
For form of appeal to Board of Trade on refusal of comp- Form. troller to register a trade mark, see form H, second schedule, page 292.
The person in whose favour the order is made must Order. leave at the patent office a copy of the order. 44, page 278.
Limit of time for
(a) The comptroller-general of patents, designs, and trade marks is substituted for the registrar. 38 & 39 Vict. c. 91, rule 5 repealed.
(b) "Person" includes a body corporate.
(c) For definition of trade mark, see s. 64 and note.
(d) For form of application, see form F, schedule 1, page 176; but see note 2, page 114.
(e) Prescribed by the general rules under or within the meaning of this Act. Sub. 2 of s. 101 provides: that any of the forms in the first schedule to this Act may be altered or amended by rules made by the Board of Trade from time to time.
(f) For provision as to leaving documents, or sending them by post, see ss. 97 & 98.
(g) Form F, first schedule to Act, page 176, with the directions printed in the form, have been replaced by the rules. See note 4, above.
(h) For the classes of goods, see page 308; and as to power of Board of Trade, see s. 101, sub. 1 (b).
(i) The court means (subject to the provisions for Scotland, Ireland, and the Isle of Man) Her Majesty's High Court of Justice. See s. 117, sub. 1.
(j) The court has no jurisdiction to order costs of proceedings before the registrar to be paid; its jurisdiction only affects proceedings in the High Court. In re Brandreth's Trade Mark, 9 Ch. D. 618; In re Rotherham's Trade Marks, 11 Ch. D. 250.
63. Where registration of a trade mark has not proceeding been or shall not be completed within twelve cation. months1 from the date of the application, by reason of default on the part of the applicant, the application shall be deemed to be abandoned.2
ment of time by
1 For time of registration of trade marks, see rule 30, page 274. The comptroller may enlarge the time for doing any act, or taking any proceeding prescribed by the rules. See rule 52, page 282.