Ch. D. 223; 51 L. J. Ch. 637; 46 L. T. N. S. 380; 30 W. R. SECT. 72. 675.

(iii.) In classes 5, 12, and 13 for use excepting in certain specified colonies: In re Keep's Trade Mark, Pearson, J., 1884, 26 Ch. D. 187; 50 L. T. N. S. 453; 32 W. R. 427.

The mode in which the subdivision was effected was by inserting on the register a note containing an undertaking restricting the user in the way desired: see sect. 62 (4), and In re Rabone Bros., ubi supra, and In re Mitchell's and Houghton and Hallmark's Trade Marks, Chitty, J., 1885, 28 Ch. D. 666; 33 W. R. 408. Under Rule 32 it would seem that the Comptroller may now insert such a note without leave of the court provided he do not transgress the restriction on his authority contained in this section.

Three-mark Rule.—The registration of similar or identical marks for use in connection with goods in the same class has always been subject to the restriction that in no case whatever should the number registered exceed three: In re Walkden Aerated Water Co., Jessel, M.R., 1877, 54 L. J. Ch. 394 ; In re Jelley, Son, & Jones, ubi supra ; In re Hargreave's Trade Mark, Hall, V.-C., 1879, 11 Ch. D. 669; 27 W. R. 550.

In the case of old marks, the court adopted the course of allowing, where equally valid titles were shown, the registration of even identical marks up to the number of three for use on the same goods: In re Jelley, Son, & Jones, ubi supra; In re Powell, Jessel, M.R., 1878, Seb. Dig. No. 589.

But if it were found that more manufacturers than three were entitled to use the same old mark for goods in the same class, it was treated as common to the trade: In re Jelley, Son, & Jones, and In re Walkden Aerated Water Co., ubi supra.

A similar test of what constitutes a common mark is adopted in sect. 74, excepting that the words "the same or a similar description of goods" are substituted for the words "the same goods or class of goods." Thus, it would seem, the new test is slightly less stringent.

In the case of new marks, a mark similar to one already on the register was only allowed to be registered for goods in the same class provided the goods and trades of the proprietors were sufficiently distinct for no confusion to take place: In re Braby

SECT. 72. & Co.'s Applications, In re Jelley, Son, & Jones, and In re Hargreave's Trade Mark, ubi supra.

Sometimes the consent of the proprietor of the registered mark was required: In re Walkden Aerated Water Co., ubi supra.

And, provided this consent was obtained, the applicant for registration might apply ex parte to the court for registration subject to a restrictive note: In re Keep's Trade Mark, ubi supra.

In calculating the number of persons who have used a device, alleged to be common to the trade, cases will be taken into consideration in which devices substantially similar, though not identical, have been used; and also cases in which substantially similar devices have been used though never claimed as valid trade marks: In re Wragg's Trade Mark, Pearson, J., 1885, 54 L. J. Ch. 391; and In re Walkden Aerated Water Co., ubi supra.

Calculated to Deceive. It is for the court alone to decide on the question of similarity, and consequently registration may be granted or refused notwithstanding the decision of a foreign court (In re Farina, Hall, V.-C., 1879, 27 W. R. 456), or the contrary opinion of the Manchester Committee of Experts (OrrEwing v. Registrar of Trade Marks, H. L. 1879, 4 App. Cas. 479 ; 48 L. J. Ch. 707; 41 L. T. N. S. 239; 28 W. R. 17). In deciding this question the court will have before it the circumstance that the opinion of the committee was adverse to the claim of a trade mark; but this would be an opinion only and not a decision after hearing both sides, or rendered in any judicial proceeding: per Cairns, L.C., ibid.

The question, however, cannot be disposed of by simple inspection of the trade marks without considering whether, according to the understanding of the trade, the resemblance is such as to be calculated to cause deception: Mitchell v. Henry, C. A. 1880, 15 Ch. D. 181; 43 L. T. N. S. 186.

Consequently great weight will always be given to the opinion of the Committee of Experts, which, though not a judicial tribunal, is appointed to give an opinion upon technical matters peculiarly within the knowledge of its members: Orr-Ewing v. Registrar of Trade Marks, ubi supra.

Illustrative Cases.-(i.) A female hand pointing horizontally has been held too similar to a male hand pointing upwards: Allsop v. Walker, Jessel, M.R., 1877, Seb. Dig. No. 545.

(ii.) So too the letters "B. B. S." in italic characters with a SECT. 72. crown, to the letters "B. B. H." in Roman characters with a crown also: Barrows v. Pelsall Iron Co., Hall, V.-C., 1877, Seb.

Dig. No. 530.

(iii.) Again, a mark consisting of a sprig of two roses and a twisted horn was considered too similar, especially when stamped upon metal, to a mark composed of a plain horn suspended by a looped cord: In re Rosing, C. A. 1878, Seb. Dig. No. 621.

(iv.) So a mark consisting of a pointer eating out of a porridgepot is similar to a device consisting of a pointer standing at a point: In re Jelley, Son, and Jones' Trade Mark, Jessel, M.R., 1878, 51 L. J. Ch. 640; 46 L. T. N. S. 381.

Since a trade mark may be printed in any colour, in deciding a question of similarity the court will not take the difference of colour into consideration, but will merely compare the uncoloured diagrams: Nuthall v. Vining, C. A. 1880, 28 W. R. 330; and see sect. 67.

Consequently, when a registered mark consisted of a plain triangle coloured red, the registration of a device, consisting of a triangle with a conspicuous design of a church within it, was refused on the ground that if printed in a red colour it would be so similar to the mark already registered as to be calculated to deceive: In re Worthington & Co.'s Trade Mark, C. A. 1880, 14 Ch. D. 8; 49 L. J. Ch. 646; 42 L. T. N. S. 563 ; 28 W. R. 747.

In cases where a representation of a trade mark cannot be sent, and a specimen or copy is deposited under Rule 13 with the Comptroller, the above rule may possibly not be adopted, but difference of colour may be taken by the court into account in deciding whether marks are so similar as to be deceptive: see In re Robinson's Trade Mark, Jessel, M.R., 1880, 29 W. R. 31; and Mitchell v. Henry, ubi supra.

The degree of similarity which has been held to constitute infringement will be sufficient to render a mark incapable of registration, for the principles upon which the court proceeds have not been altered by the Registration Acts: see Mitchell v. Henry, supra; In re Farina, Hall, V.-C., 1879, 27 W. R. 456; and per Lord Blackburn, in Orr-Ewing v. Registrar of Trade Marks, H. L. 1879, 4 App. Cas. 479; 48 L. J. Ch. 707; 41 L. T. N. S. 239; 28 W. R. 17.

G

SECT. 72.

In cases of infringement the test adopted has always been the probability of deception.

"In order to entitle a party to relief it is by no means necessary that there should be absolute identity. What decree of resemblance is necessary is, in the nature of things, a matter incapable of definition, a priori. All that the courts of justice can say, is that no trader can adopt a trade mark so resembling that of a rival as that ordinary purchasers, purchasing with ordinary caution, are likely to be misled. It would be a mistake, however, to suppose that the resemblance must be such as would deceive persons who should see the two marks placed side by side. The rule so restricted would be of no practical use. If a purchaser, looking at the article offered to him, would naturally be led, from the mark impressed on it, to suppose it to be the production of a rival manufacturer, and would purchase it in that belief, the court considers the use of such a mark to be fraudulent :" per Cranworth, L.C., in Seixo v. Provezende, 1866, L. R. I Ch. 192; 14 L. T. N. S. 314; 14 W. R. 357. See also per Shadwell, V.-C., in Ransome v. Benthall, 1833, 3 L. J. Ch. 161; and in Guinness v. Ullmer, 1847, 10 L. T. 127; per Langdale, M.R., in Perry v Truefitt, 1842, 6 Beav. 66; 1 L. T. 384; and in Croft v. Day, infra ; per Westbury, L.C., in Hall v. Barrows, 1863, 4 De G. J. & S. 150; 33 L. J. Ch. 204; 10 Jur. N. S. 55; 9 L. T. N. S. 561; 12 W. R. 322; and in M'Andrew v. Bassett, 1864, 4 De G. J. & S. 380; 33 L. J. Ch. 566; 10 Jur. N. S. 550; 10 L. T. N. S. 442; 12 W. R. 777; per Wood, V.-C., in Blackwell v. Crabb, 1867, 36 L. J. Ch. 504; per Lord Chelmsford, in Wotherspoon v. Currie, H. L. 1872, L. R. 5 H. L. 519; 42 L. J. Ch. 130; 27 L. T. N. S. 393.

By the Merchandise Marks Act, 1862, sect. 5, the probability of deception is also constituted the test of what degree of imitation amounts to forgery within that Act.

Illustrative Cases where infringement has been established :(i.) "Day & Martin, 97 High Holborn," and "Day & Martin, 90 Holborn Hill," in Croft v. Day, Langdale, M.R., 1843, 7 Beav. 84.

(ii.) "J. W. Taylor's Persian Thread," and "Sam. Taylor's Persian Thread," in Taylor v. Taylor, Wood, V.-C., 1854, 2 Eq. Rep. 290; 23 L. J. Ch. 255 ; 22 L. T. 271.

(iii.) "Anchor Brand Wire," and "Crown and Anchor Wire," SECT. 72, with an anchor as a device in each case, in Edelsten v. Edelsten, Westbury, L.C., 1863, 1 De G. J. & S. 185; 9 Jur. N. S. 479; 7 L. T. N. S. 768; 11 W. R. 328.

(iv.) A crown and eagle and the letters "B. S." on a cask with a crown, "Seixo" and the date at the bunghole, and a crown with the letters "C. B." on a cask, and "Seixo de Cima," a crown and the date at the bunghole, in Seixo v. Provezende, supra.

(v.) Where the plaintiffs labelled their starch "Glenfield Starch," and the defendant, obtaining a factory at Glenfield, sold starch in packets upon which appeared the word "Glenfield," although his own name was also given in smaller type: Wotherspoon v. Currie, supra.

(vi.) A triangular ticket in green and gold, containing two elephants supporting a banner, with a crown between the elephants, and a similar ticket with a Hindoo elephant-headed goddess between the elephants in place of the crown: Orr-Ewing v. Johnston, H. L. 1882, 7 App. Cas. 219; 51 L. J. Ch. 797; 46 L. T. N. S. 216.

(vii.) "Holloway's Pills," with the address "244 Strand," and "H. Holloway's Pills," with the address "210 Strand," upon labels otherwise identical: Holloway v. Holloway, Langdale, M.R., 1850, 13 Beav. 209.

(viii.) Where the plaintiffs used a label with the words "Taylor & Co.," and the defendant adopted a similar label, adding merely the words, "T. Vick, from the late :" Edelsten v. Vick, Wood, V.-C., 1853, 11 Hare 78; 18 Jur. 7.

(ix.) Labels containing the words "Graduated, grooveless, drilleyed, ground-down needles, invented and made solely by Shrimpton & Hooper at the Albion Needle-works, Studley," and similar labels, excepting that the words "Albion Needle-works" were omitted, and the words "Shrimpton Turvey" were substituted for "Shrimpton & Hooper :" Shrimpton v. Laight, Romilly, M.R., 1854, 18 Beav. 164.

(x.) A cross with the letters "C. B.," and a cross with the letters "C. S.:" Cartier v. Carlile, Romilly, M. R., 1862, 31 Beav. 292; 8 Jur. N. S. 183.

(xi.) A label containing the words "Stephens' Blue-Black Writing Fluid," and a similar label, except the substitution of