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of the execution of this Act shall be paid out of money SECTS. 84, provided by Parliament.
The powers here given to the Board of Trade as to the appointment of officers, &c., were under sect. 7 of the Act of 1875 exercisable by the Lord Chancellor with the consent of the Treasury.
As to the Comptroller, see sect. 82. Anything directed by the Act to be done by or to him may in his absence be done by or to any person for the time being authorised by the Board.
84. There shall be a seal for the Patent Office, and Seal of impressions thereof shall be judicially noticed and office. admitted in evidence.
Copies of documents in the Patent Office and extracts from the registers purporting to be certified by the Comptroller and sealed by the official seal are admissible in evidence without further proof: see sect. 89.
85. There shall not be entered in any register kept Trust not to under this Act, or be receivable by the Comptroller, any in registers. notice of any trust, expressed, implied, or constructive.
So far as this section refers to trade marks, it is a re-enactment of Rule 23 of the Rules of 1883, which itself was a reprint of Rule 22 of the Rules of 1876.
As to the general effect of such a provision as the above upon the rights of equitable assignees and mortgagees, see Societé Genérale de Paris v. Tramways Union Co., C. A. 1884, 14 Q. B. D. 424;-a case dealing with the somewhat similar provision, in respect of share registers, contained in the Companies Act, 1862, 25 & 26 Vict., c. 89, s. 30.
In consequence of this enactment, when by agreement between two traders similar trade marks are registered in respect of the same description of goods, a note will be added to the register, not to the effect that the user has been restricted by agreement
SECTS. 86, between the parties, but containing cross undertakings by the 87. parties to use their trade marks only in the manner desired : In re Mitchell and Houghton and Hallmark's Trade Marks, Chitty, J., 1885, W. N., p. 42; S. C., Chitty, J., 1884, 28 Ch. D.`666; 33 W. R. 148, 408; In re Rabone Bros., Jessel, M.R., 1879, Seb. Dig. No. 643.
86. The Comptroller may refuse to grant a patent for patent, &c., an invention, or to register a design or trade mark, of which the use would, in his opinion, be contrary to law or morality.
Entry of assignments
The Comptroller will not register the Royal Arms (except in the case of old marks) or the words "Registered," "Registered Design," ""Copyright," ," "Entered at Stationers' Hall," "To Counterfeit this is Forgery:" see Instruction 30.
The following also will not be registered as trade marks or prominent parts of trade marks unless in use before 1875: Representations of her Majesty the Queen or of any member of the royal family.
Representations of the royal crown.
The national arms or flags of Great Britain.
By sect. 73, the Comptroller is prohibited from registering in combination with a mark any words the exclusive use of which would be deemed disentitled to protection in a court of justice, or any scandalous design.
87. Where a person becomes entitled by assignment, and trans- transmission, or other operation of law to a patent, or registers. to the copyright in a registered design, or to a registered trade mark, the Comptroller shall, on request, and on proof of title to his satisfaction, cause the name of such person to be entered as proprietor of the patent, copyright in the design, or trade mark, in the Register of Patents, Designs, or Trade Marks, as the case may be. The person for the time being entered in the Register
of Patents, Designs, or Trade Marks, as proprietor of a SECTS. 86, patent, copyright in a design, or trade mark, as the case may be, shall, subject to any rights appearing from such register to be vested in any other person, have power absolutely to assign, grant licenses as to, or otherwise deal with, the same, and to give effectual receipts for any consideration for such assignment, license, or dealing. Provided that any equities in respect of such patent, design, or trade mark may be enforced in like manner as in respect of any other personal property.
A trade mark may be assigned and transmitted only in connection with the goodwill of the business concerned in the particular goods or classes of goods for which it has been registered: see sect. 70.
As to the mode of obtaining registration of an assignment, see Rules 34-38, Form K, and Instruction 42.
By sect. 4 of the Act of 1875 it was provided that every proprietor registered in respect of a trade mark subsequently to the first registered proprietor should, as respected his title to that mark, stand in the same position as if his title were a continuation of the title of the first registered proprietor. A re-enactment of this section was possibly considered unnecessary in consequence of the rights, conferred by registration, being given to every person registered as proprietor (see sect. 76, though the marginal note thereto seems in conflict with this view), and not merely to a person registered as the first proprietor (see sect. 3 of the Act of 1875).
The five years, however, which under sect. 76 afford conclusive evidence of exclusive right to a trade mark, date apparently from the registration not of the trade mark but of the name of the proprietor. Consequently a subsequent proprietor would seem to derive no benefit from the prior registration.
Licenses. Since a trade mark can be used only in connection with the goodwill of the business concerned in the particular
SECT. 88. goods or classes of goods for which it has been registered (see sect. 70, ante), a license can be granted, if at all, only for use in such a business. And to avoid all imputation of fraud the trade mark should only be affixed to goods which are substantially the same as those sold by the licensor.
Inspection of and ex
If the Comptroller refuse to register a person claiming a trade mark by assignment or transmission on the ground that he is not satisfied with the title shown or otherwise, the claimant's remedy is under sect. 90, as being a person aggrieved by the omission of his name from the register; see, however, In re Ward, Sturt & Sharp's Trade Mark, Hall, V.-C., 1881, 50 L. J. Ch. 347; 44 L. T. N. S. 97; 29 W. R. 395, which, owing to the difference between the phraseology used in the Act of 1875 and in sect. 90 of this Act, can scarcely be regarded any longer as a binding authority.
Before exercising the discretionary power here given to him adversely to the applicant, the Comptroller is bound to give him an opportunity of being heard personally or by an agent, and to give him ten days' notice of an appointment for the purpose: sect. 94, and Rules 17-19.
88. Every register kept under this Act shall at all tracts from convenient times be open to the inspection of the public, subject to such regulations as may be prescribed; and certified copies, sealed with the seal of the Patent Office, of any entry in any such register shall be given to any person requiring the same on payment of the prescribed fee.
"Prescribed " means prescribed by general rules under the Act: see sect. 117. As to the prescribed regulations, see Rule 49. The fees for inspecting the register (Is. for every quarter of an hour) and for obtaining certified copies are prescribed in the first schedule to the Rules.
As to the seal of the Patent Office, see sect. 84. Sealed and certified copies are admissible in evidence without further proof: sect. 89.
Searches can be made on payment of a similar fee for trade SECTS. 89, marks in classes of textiles from class 23 to class 35 at the Manchester office see Instruction 38.
There seems to be no provision in regard to searches in the Sheffield Registry: see sect. 81 (7), however.
copies to be
89. Printed or written copies or extracts, purporting Sealed to be certified by the Comptroller, and sealed with the received in seal of the Patent Office, of or from patents, specifications, disclaimers, and other documents in the Patent Office, and of or from registers and other books kept there, shall be admitted in evidence in all courts in her Majesty's dominions, and in all proceedings, without further proof or production of the originals.
As to the seal of the Patent Office, see sect. 84.
As to the fees for obtaining copies, &c., see the first schedule to the Rules.
As to certificates under the hand of the Comptroller only, see sect. 96.
90. (1.) The court may, on the application of any Rectificaperson aggrieved by the omission without sufficient registers by cause of the name of any person from any register kept under this Act, or by any entry made without sufficient cause in any such register, make such order for making, expunging, or varying the entry, as the court thinks fit; or the court may refuse the application; and in either case may make such order with respect to the costs of the proceedings as the court thinks fit.
(2.) The court may, in any proceeding under this section, decide any question that it may be necessary