USE OF A TRADE MARK.

New Zealand Herald, Volume LXIII, Issue 19384, 20 July 1926, Page 14

USE OF A TRADE MARK.

WORD " TOPMOST " AT ISSUE.

DECISION OF APPEAL ' COURT.

[by telegraph.—own correspondent.] WELLINGTON, Monday.

The judgment of the Court of Appeal in the case of R. Jamieson and Company, Ltd., pgamst J. J. Abel, Ltd., was. de. livered to-day by the Chief Justice. The question was' whether J. J. Abel, Ltd., was entitled to register as a trade mark the word "Topmost," -with the device of an outline map of New Zealand, in respect of made-up' shirts and pyjamas, in view of the fact that there was already on the register in the name of the appellant a trade mark consisting of the word "Topmost,' with the device of a sailor nailing a flag to a mast. The registrar of trade marks, before whom the application first came, disallowed the application of Abel on the ground that his mark was calculated to deceive. This decision was reversed by Mr. Justice Ostler, from whose judgment the appeal was made by Jamieson. The judgment of the Court of Appeal is to the effect that in view, of the fact that each mark contains as an essential feature the word "Topmost," and as the goods of the appellant and respondent are both commonly made and sold by the same wholesalers, and also sold by the same retailers, the Court was not satisfied that it had been established that there was no reasonable likelihood of confusion in the application of substantially the same mark to the two sets of goods. Jamieson's appeal was therefore allowed, with costs on the middle scale.