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. Discretionary power troller. 6 Before adversely exercising this discretionary power, the 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. 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. date of re 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. Board of 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. 8 The person in whose favour the order is made must Order. leave at the patent office a copy of the order. 44, page 278. See rule Court. 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 c. 91, rule 5 repealed.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 with application. 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 Enlarge ment of time by comptroller. 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. 2 Where applicant dies before registration, the trade Death of applicant. mark may be registered in the name of the person to whom the goodwill of the business has been transmitted, if such ownership is proved to the satisfaction of the comptroller. See rule 31, page 275. of registra 64. (1.) For the purpose of this Act, a trade Conditions mark must consist of or contain at least one of the tion of trade mark. following essential (a) particulars : (a.) A name of an individual or firm printed, impressed, or woven in some particular and distinctive manner; or (b.) A written signature or copy of a written signature of the individual or firm applying for registration thereof as a trade mark; or (c.) A distinctive device, mark, brand, heading, label, ticket, or fancy word or words not in common use. (2.) There may be added to any one or more of these particulars any letters, words, or figures, or combination of letters, words, or figures, or of any of them (b). (3.) Provided that any special and distinctive word or words, letter, figure, or combination of In a distinctive manner. Reason for requirement. Common name. (a) "Essential particulars." See In re Barrows, 5 Ch. D. 353. Thus a name pure and simple (unless it was registered before the 13th August, 1875) is not proper subject-matter for registration. It must be printed, impressed, or woven in some distinctive manner-that is, must have some peculiar distinguishing character; as, for instance, in the case of Stephens v. Peel (16 L. T. (N. S.) 145), the plaintiff caused the letters on the labels for his ink-bottles to be printed in part white on a red ground, in part white upon a blue ground, and in part blue on a white ground. The reason of this requirement is that there are now few names which do not belong to many persons in common, and it would be unfair to allow one to arrogate to himself the exclusive use of that to which others have an equal right. The use of a common name by its owners is allowed; but if used with intent to defraud by one of the parties, such unfair user will be restrained, even though hindering the free use of the defrauder's name. Thus it was shown that Holloway v. H. Holloway intended fraudulently to deceive the public, Holloway. and make them believe he was selling his brother's (Thomas Holloway's) pills and ointment, by using similar wrappers and labels, although he placed his own initials (H. H.) on the boxes. See Holloway v. Holloway, 13 Beav. 209. If no fraudulent intent. Written signature. Farina v. Schweppe and Co. If a fraudulent intention is not proved, a person will not be restrained from using his own name, although another has used it (the same name) first in the same kind of business. Burgess v. Burgess, 3 De G. M. & G. 89. The label was "Burgess' Essence of Anchovies." (b) A written signature is very nearly comprised under the former class. It is the name of the individual written (instead of printed) in a "particular and distinctive manner." In the case of Farina v. Silverlock (1 K. & J. 509; 6 De G. M. & G. 214; 4 K. & J. 650), the defendant was restrained by injunction from printing and selling labels similar to the plaintiff's, and bearing a fac-simile of his signature. In the case of Welch v. Knott (4 K. & J. 747; 4 Jur. (N. S.) 330), the defendant used old soda water bottles with the name of the firm (Schweppe & Co.) on the bottles. The labels on the bottles had no name on them, but simply "Soda Water," and it was held that, if a probability of deception had been caused, though unintentionally, by the defendant, the injunction would have continued. See also Leather Cloth Co. v. American Leather Cloth Co., 11 H. & C. 523; and Lord Cranworth's observations in the same case, 4 De G. J. & S.144 ; Byass v. Sullivan, Sebastian's Digest, 104; Massam v. J. W. Thorley's Cattle Food Co. 6 Ch. D. 574, 46 L. J. Ch. 707, 36 L. T. (N. S.) 848. In re Farina, Sebastian's Digest, 394, 405. (c) Care must be taken that the trade marks under this class are distinct and different from those used in the same class of goods. The changes in this class of trade marks introduced by this section in the inclusion of "brands," and fancy wood or woods not in common use, which latter, although not specially named, were included in s. 10 of 38 & 39 Vict. c. 91. See Ex parte Stephens, L. R. 3 Ch. D. 659. For cases of branding, see Seixo v. Provezende, L. R. 1 Branding. Ch. 192; Moet v. Couston, 33 Beav. 578; Pousardin v. Peto, 33 Beav. 642. For cases of headings, see Harter v. Souvazoglu, Sebas- Headings. tian's Digest, page 272. Injunction granted to restrain defendant from using plaintiff's heading, which consisted of different coloured threads affixed to their cotton cloths. In Carver v. Bowker, Sebastian's Digest, page 350, the heading consisted of specially coloured stripes, certain other stripes, the number 109, the figure of a coroneted eagle, the words "Carver, Irmaos, & Co." In Robinson v. Finlay, Ward v. Robinson, 9 Ch. D. 487; 39 L. T. (N. S.) 398 ; 27 W. R. 294, it was held, on appeal, that neither of the parties was entitled to the exclusive use of the group, for the adventure in furtherance of which the trade mark was created being terminated, more than three persons were entitled to the use. The label in Wotherspoon v. Currie, 42 L. J. Ch. 130; Labels. |