A TRADE MARK

Evening Post, Volume CX, Issue 69, 18 September 1925, Page 8

A TRADE MARK

APPEAL AGAINST REGISTRAR'S

'REFUSAL.

: An appeal against the refusal of the Registrar to, accept'-a' trade mark was heard' in the Supreme Court to-day by his'^Hohour Mr. Justice. Ostler. • .-:•

The application made to the Registrar under j the Patents,! Designs) and Trade Marks, Act, 1921:1922, which was refused, was?:byJ. and, J. Abel; Ltd;,; who stated in their notice of motion appeal for a reversal of the Registrar's decision,, that ■they ,were proprietors of the trade mark ml question, which had been exclusively and continuously used by them for two years. \ The, mark consisted 'of a! map" of New' Zealand with the word "Topmost": printed above it, quite dissimilar .from the trade mark- of' Kv* Jaraiesoh and C 0.,.; Ltd., and not calculated to deceive. 'The : goods to which the • appellant affixed the mark were shirts and pyjamas^ while the respondents' mark' was used on' bicunas, coatings, and serges in the .piece. ■ .... Mr. C. G. White appeared: for the'ap: pellants, and ; Mr. H. H. Cornish for the respondents. ; ; ■•' ■ ■ '•■'■. \ ■ ' Mr. White said that the Registrar had refused the - application -on the ground of the similarity of the marks, but they were in reality very dissimilar.' The trade, mark, of the opponents was a sailor climbing a" mast with a flag," on which was the word."Topmost." .'.'•'. ! \ His. Honour: ."Might not the person who had bought the serges b3 induced to buy the pyjamas by seeing the .name 'TopmoSt; ? " . ■•■ (...;; .'. .' .','<

. Mr. White : "The same person' would not buy the two. kinds 'of materialg." People who bought the serges, etc., were people in the trade, who made up the stuff and sold it'only to the trade,; in bulk made up in the piece.- Abel and Co.'s goods. wera sold■ direct;'to .customers. ; ..,' ;.'' '•■■. .'.- .';;.; '■-.■' : • ' . '.

His Honour : ,"Cannot wo consider the man : iwho' xiltmiately buys these shirts and suits?.". " „ ;■ ;.; .. '

' ;Mr.- /White-:;. "The number of customers for the.'suitings is 700 for the whole of New' Zealand. .Tha. only;;instance vrottld be where...a man. went .into, a tailor's; and asked for that particular make of cloth." ■ '• - ' ■

(l s rAcceding:)