T-4311-81
Gerhard Horn Investments Ltd. (Appellant)
v.
Registrar of Trade Marks (Respondent)
Trial Division, Cattanach J.—Ottawa, June 8 and
24, 1983.
Trade marks — Fictitious name "Marco Pecci" found not
registrable as trade mark by Registrar — Whether fact aver
age Canadian might consider it name of individual precluding
registration — Interpretation of s. 12(1)(a) of Trade Marks
Act — Test of registrability being (1) whether word name or
surname of living individual or one who died recently (2) if yes,
whether word "primarily merely" such name — Appeal
allowed — Trade Marks Act, R.S.C. 1970, c. T-10, ss.
12(1)(a), 60 — Trade Marks Act, S.C. 1952-53, c. 49, s.
12(1)(a) — Unfair Competition Act, R.S.C. 1952, c. 274, s.
26(1)(b) — Patents, Designs and Trade Marks Act, 1888, 51 &
52 Vict., c. 50, s. 10 — Department of Consumer and Corpo
rate Affairs Act, R.S.C. 1970, c. C-27, s. 3 — Interpretation
Act, R.S.C. 1970, c. 1-23, s. 26(7).
The Registrar of Trade Marks held that the fictitious name
"Marco Pecci" was not registrable as a trade mark for use in
association with ladies' wear on the grounds that consumers
would consider it to be primarily merely the name of an
individual.
Held, the appeal from the Registrar's decision should be
allowed. There is no impediment to the adoption of the name of
a fictitious person as a trade mark, provided it does not coincide
with the name of a living person or one who has died recently.
The first test of registrability under paragraph 12(1)(a) of the
Trade Marks Act is whether the word or words sought to be
registered is the name of a living individual or one who has
recently died. Only if that condition precedent is satisfied need
consideration be given to the second test: whether the trade
mark applied for is "primarily merely" a name or surname.
CASES JUDICIALLY CONSIDERED
APPLIED:
In the Matter of Holt and Co.'s Trade Mark (1896), 13
R.P.C. 118 (Eng. C.A.); Standard Oil Company v. The
Registrar of Trade Marks, [1968] 2 Ex.C.R. 523; In re
Mange! Stores Corporation, 165 USPQ 22 (1970).
CONSIDERED:
McDonald's Corporation v. Deputy Attorney General of
Canada, [1977] 2 F.C. 177; 31 C.P.R. (2d) 272 (T.D.).
REFERRED To:
The Registrar of Trade Marks v. Coles Book Stores
Limited, [1974] S.C.R. 438; Calona Wines Limited v.
Registrar of Trade Marks, [1978] 1 F.C. 591; 36 C.P.R.
(2d) 193 (T.D.); Elder's Beverages (1975) Ltd. v. Regis
trar of Trade Marks, [1979] 2 F.C. 735; 44 C.P.R. (2d)
59 (T.D.); Galanos v. Registrar of Trade Marks (1982),
69 C.P.R. (2d) 144 (F.C.T.D.).
COUNSEL:
James G. Fogo for appellant.
Arnold S. Fradkin for respondent.
SOLICITORS:
Herridge, Tolmie, Ottawa, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an appeal from the
decision of the Registrar of Trade Marks cul
minating and expressed in a letter dated July 7,
1981 signed by the Registrar after the application
for the registration of the words "Marco Pecci" as
a trade mark in association with ladies wearing
apparel had been the subject of lengthy consider
ation.
The application for registration was made on
November 16, 1977 based upon use of the mark
applied for on a date at least as early as July 1,
1976.
The initial office action dated October 4, 1978
by an examiner to which a response was invited
was expressed in part in the following terms:
The mark which is the subject of this application is considered
to be primarily merely the name of an individual.
In view of the provisions of Section 12(1)(a) of the Trade
Marks Act, this mark does not appear registrable.
The Registrar is of the opinion that consumers are unable to
discriminate between fictitious names and actual names. To the
consumer, MARCO PECCI, would, therefore, be considered the
name of an individual.
Any comments you may wish to submit will receive
consideration.
A response dated April 4, 1979 was forthcoming
from the agents for the applicant requesting recon
sideration of the rejection by the examiner under
paragraph 12(1)(a) [of the Trade Marks Act,
R.S.C. 1970, c. T-10] which reads:
12. (1) Subject to section 13, a trade mark is registrable if it
is not
(a) a word that is primarily merely the name or the surname
of an individual who is living or has died within the preceding
thirty years;
It was pointed out that by reason of the inclu
sion of the words "who is living or has died within
the preceding thirty years" after the word
"individual", a name or surname of an individual
may be registered if it is not the name or surname
of a living person or if the person bearing that
name or surname that died within the preceding
generation, which has been for convenience fixed
at 30 years, there is no impediment to the registra
tion of such a name or surname as a trade mark.
That is patent from the inclusion of the conclud
ing words, which are quoted above, in paragraph
12(1)(a) otherwise the paragraph should have
ended at the word "individual".
In the response by the applicant's agents it was
reiterated, as had been pointed out in paragraph 3
of the application, that the trade mark sought to
be registered was coined by the applicant no doubt
to share in the acclaim accorded to foreign design
ers in recognized foreign feminine fashion centres
which was accomplished by the selection of the
word "Pecci" as a surname which has such a
connotation and prefaced that word by the word
"Marco" as a forename which has a like ethnic
connotation.
Thus the trade mark is a "coined" one formed
by the combination of the two words. The result
ant name is a fictitious one having been created by
a fiction, that is to say the action of creating an
imaginary being.
There has been no impediment to the adoption
of the name of a fictitious person as a trade mark
and the names of fictitious persons have not been
precluded from registration as trade marks in any
antecedent legislation.
In my opinion this is perpetuated by the lan
guage of paragraph 12(1)(a) enacted in the 1953
Trade Marks Act [S.C. 1952-53, c. 49] (presently
in force) which wrought substantial changes in
other respects to its predecessor section in the
Unfair Competition Act [R.S.C. 1952, c. 274], i.e.,
paragraph 26(1)(b) by which a word mark was
registrable if it was not the name of a person, firm
or corporation.
The crucial word in the language of paragraph
12(1)(a) "the name or the surname of an individu
al" is the word "individual".
As to the interpretation of that word as included
in the language "a name of an individual" in
paragraph 10(a) [amending section 64 of principal
Act] of the Patents, Designs and Trade Marks
Act, 1888 [51 & 52 Vict., c. 50], Lindley L.J. had
this to say In the Matter of Holt and Co.'s Trade
Mark ((1896), 13 R.P.C. 118 [Eng. C.A.]) at
page 122:
In metaphorical language, an imaginary person may perhaps be
called an individual, but such a use of the word is unusual, and,
to my mind, rather fanciful. It is hardly to be supposed that the
Legislature meant "individual" to be taken in a fanciful or
metaphorical sense; or meant it to denote an imaginary person
who has not and never had any real existence.
What is precluded by paragraph 12(1)(a) from
registration as a trade mark is the "name or the
surname of an individual who is living or has died
within the preceding thirty years" and the name of
a fictitious person is not precluded thereby from
registration except when by chance the fictitious
name coined by the applicant for registration
thereof coincides with the name of a living person
or a person who bore such name and has been dead
for less than thirty years.
Despite the representations made by the appli
cant's agents the examiner of some fictitious entity
described as "Consumer and Corporate Affairs
Canada" rather than a department of the Govern
ment of Canada called the Department of Con
sumer and Corporate Affairs (see R.S.C. 1970, c.
C-27, s. 3, which name has not been changed by
an Act of Parliament) persisted in her opinion and
stated in a letter dated April 25, 1979 that the
trade mark "Marco Pecci" offends the provisions
and referred the applicant's agent to the well-
known test propounded by Jackett P. (as he then
was) in Standard Oil Company v. The Registrar
of Trade Marks ([1968] 2 Ex.C.R. 523, at page
532) to be applied to determine whether a word
sought to be used as a trade mark is "primarily
merely" the name or surname of an individual
(which means a real person as contrasted to an
imaginary one) or something else such as a dic
tionary word, an invented or coined word or the
brand or mark of some business.
That test was approved and adopted by the
Supreme Court of Canada in a judgment delivered
by Judson J. in The Registrar of Trade Marks v.
Coles Book Stores Limited ([1974] S.C.R. 438).
Jackett P. in the Standard Oil or Fior case
(supra) . said ; [Ã t page 532]: "The test must be
what, in the opinion of the respondent [i.e., the
Registrar of Trade Marks] or the Court, as the
case may be, would be the response of the general
public of Canada to the word."
Applying that test he said [at pages 532-533]:
My conclusion is that a person in Canada of ordinary intelli
gence and of ordinary education in English or French would be
just as likely, if not more likely, to respond to the word by
thinking of it as a brand or mark of some business as to respond
to it by thinking of some family of people (that is, by thinking
of it as being the surname of one or more individuals). Indeed, I
doubt very much whether such a person would respond to the
word by thinking of there being an individual having it as a
surname at all.
The word "Fior" was an acronym created by the
applicant by combining the first letters of each of
the words "fluid iron ore reduction".
It is a rare surname. The Registrar himself
swore and filed an affidavit in evidence that a
search of the city directory of Montreal, P.Q.
disclosed one person bearing that surname, the city
directory of Toronto, Ontario disclosed nine per
sons of that name and the telephone directories of
the State of Illinois and the cities of Los Angeles
and San Francisco disclosed a total of six such
persons.
. The test propounded by Jackett P. and approved
by Judson J. with respect to surnames has been
followed and applied in Calona Wines Limited v.
Registrar of Trade Marks ([[1978] 1 F.C. 591];
36 C.P.R. (2d) 193 [T.D.]) in which it was shown
that 41 individuals in all of Canada had the sur-
name "Fontana", in Elder's Beverages (1975) Ltd.
v. Registrar of Trade Marks ([[1979] 2 F.C. 735];
44 C.P.R. (2d) 59 [T.D.]) in which the Registrar
established that a search through the telephone
directories of 21 major cities in Canada listed 354
persons bearing the surname "Elder", and in
Galanos v. Registrar of Trade Marks [(1982), 69
C.P.R. (2d) 144 (F.C.T.D.)] in which a search of
the telephone directories of the cities of Montreal
and Toronto showed the listings of two persons in
Montreal and three persons in Toronto bearing the
surname of "Galanos" and the surname of the
applicant was also "Galanos".
The only prior instance in which the name of a
person consisting of both a surname and a fore
name occurred in McDonald's Corporation v.
Deputy Attorney General of Canada ([[1977] 2
F.C. 177]; 31 C.P.R. (2d) 272 [T.D.]) in which
the Registrar rejected an application for the regis
tration of "Ronald McDonald" as a trade mark as
a proposed mark for use in association with food
services on two grounds only, the first of which is
material here and was that the applicant had
failed to establish that the name "Ronald McDo-
nald" was not "primarily merely the name ... of
an individual who is living or has died within the
preceding thirty years".
There was evidence before my brother Addy
who heard the matter that the name was used to
identify a fictitious clown.
While it is not apparent from the reasons of
Addy J. there was evidence in the material before
him consisting in part of all documents on file in
the office of the Registrar relating to the proceed
ings under appeal which were transmitted to the
Court pursuant to section 60 of the Trade Marks
Act that there were living individuals in Canada
bearing the name of Ronald McDonald.
Mr. Justice Addy concluded that the evidence
before him failed to establish that paragraph
12(1)(a) had been complied with to satisfy the test
propounded by Jackett P. in the Standard Oil or
Fior case (supra) in that, and this is my interpola-
tion, the response of the general public in Canada
to the words would be to think it is the name of a
living individual rather than by thinking of the
words as the brand or mark of some business and
it is in fact, the name of living individuals in
Canada.
In response to this office action, if that is what it
was, dated April 25, 1979 the applicant's agents
responded by a memorandum dated October 25,
1979 in which issue was taken with the examiner's
rejection of the application for registration of the
trade mark "Marco Pecci" on two points:
(1) that the examiner has not established a proper statutory
basis for rejection of the application, in that having accepted
the premise that MARCO PECCI is a fictitious and invented
designation created for use as a trade mark and the examiner
has offered no evidence that persons living or dead within the
last thirty years, of that name have been found in any directory,
and
(2) even if the words could be shown to be a rare name
possessed by a living person or one who had died within thirty
years prior, the principal character of the words can be equally
that of a coined word and as such comply with the test
enunciated in the Standard Oil case by Jackett P.
This evoked a response dated February 21, 1981
in which the examiner continues in and expresses
her opinion that "Marco Pecci" offends the provi
sions of paragraph 12(1)(a) of the Trade Marks
Act but at long last condescends to state to the
applicant's agents that :
The surname PECCI appears in the following telephone
directories:
Toronto — 1 listing
Manhattan l listing
Paris — 1 listing
The Italian Embassy advised the examiner that PECCI is a
surname and on checking only the Rome and Florence tele
phone directories, they discovered approximately 10 listings of
this surname.
In the light of that information the examiner
repeated the opinion still held by her:
that a person in Canada of ordinary intelligence and of ordi
nary education in English or French would be to think of the
words MARCO PECCI as being primarily merely the name of an
individual.
which is, in substance what was said in the office
action dated April 25, 1979 and in more varied
terms in the action dated October 4, 1978, already
quoted.
The applicant's agents responded again once
more reiterating what appears to be the material
facts
(1) the name "MARCO PECCI" has not been shown to be the
name of any person living or dead within the last thirty years,
and
(2) the name PECCI as a surname is not shown to be more than
unique in Canada to one person or family, one person or family
in all Manhattan and that listing has now disappeared and
extremely rare in the two most populous cities in Italy, Rome
and Florence.
It seems odd that the listings in the telephone
directories of those cities could not be counted
with accuracy and should be described as "approx-
imately 10" in number.
This response elicited a decision contained in a
letter dated July 7, 1981 signed by the Registrar
which bears reproduction particularly the express
language utilized in the second, fourth, fifth and
sixth paragraphs:
Reference is made to the application for registration of the
above described trade mark.
The examiner objected to the mark under the provision of
Section 12(1)(a) of the Trade Marks Act on the grounds that
MARCO PECCI is primarily merely the name of an individual.
The applicant responded stating that the name MARCO PECCI
"is not the name of any real person ... but is fictitious, an
invented designation created for use as a trade mark."
The examiner had earlier point (sic) out that consumers are
unable to discriminate between fictitious names and actual
names. To the consumer, MARCO PECCI would be considered to
be the name of an individual.
Notwithstanding the fact that PECCI is not a common surname,
as noted in the office letter dated February 21, 1980, but
prefaced with the masculine given name MARCO, it is my
opinion that the reaction of the great majority of Canadians to
the words MARCO PECCI would be that of the name of an
individual.
Accordingly, I consider "Marco Pecci" to be primarily merely
the name of an individual and not registrable having regard to
the provisions of Section 12(1)(a) of the Trade Marks Act. The
application is therefore refused pursuant to Section 36(1)(b) of
the same Act.
Under Section 36 of the Trade Marks Act, an appeal from this
decision lies to the Federal Court of Canada within two months
from the date of this notice or within such further time as the
Court may allow either before or after the expiry of two
months.
That is the decision which is appealed.
In order for the Registrar to be satisfied that a
trade mark is not registrable, as the Registrar in
this instance found the trade mark "Marco Pecci"
not to be having stated in his letter dated July 7,
1981 that the application was refused, it follows
that the registration of the mark sought to be
registered must be precluded by a provision of the
Trade Marks Act.
The provision relied upon by the examiner and
ultimately by the Registrar is paragraph 12(1)(a)
which is again reproduced for convenient proximi
ty:
12. (1) Subject to section 13, a trade mark is registrable if it
is not
(a) a word that is primarily merely the name or the surname
of an individual who is living or has died within the preceding
thirty years;
By subsection 26(7) of the Interpretation Act,
R.S.C. 1970, c. I-23, the word "word" expressed in
the singular may be read in the plural as well and
must be so read in this instance because the name
of an individual normally in present times consists
of more than one word.
Paragraph 12(1)(a) does not preclude the regis
tration of fictitious names, as "Marco Pecci" is
established to be, for the reasons previously
expressed.
Lindley L.J. in the extract from Holt and Co.'s
Trade Mark previously quoted expressed the view
that an individual is not meant to denote an imagi
nary person who has had no real existence but
rather denotes real persons.
Thus the impediment to the registration of a
fictitious name as a trade mark is that the choice
of such a name happens to coincide with a name
borne by someone now living or was borne by
someone who has died within the last thirty years.
That is what is clearly provided by the language
of paragraph 12(1)(a).
If that were not so the paragraph should have
ended at the word "individual" but it does not and
it is elementary that no language in a statute or
the section of a statute can be ignored.
The first and foremost consideration is whether
the word or words sought to be registered is the
name or surname of a living individual or an
individual who has recently died.
It is when that condition precedent is satisfied,
and only then, that consideration need be given to
the question whether the trade mark applied for is
"primarily merely" a name or surname rather than
something else.
Jackett P. made that abundantly clear in the
Standard Oil case (supra) when he said at page
531:
That brings me to the position that I am satisfied that, on the
evidence before the respondent and the evidence before me,
"FIOR" is "a word that is ... the surname of an individual
who is living". The further question to be decided is, whether
"FIOR" is "primarily merely" such a word.
First he was satisfied that the word was the
surname of a living individual and on being so
satisfied he then proceeded to the application of
the test he propounded.
From first to the end of the office action on the
application for the registration of "Marco Pecci"
the examiner and ultimately the Registrar deliber
ately refrained from commenting upon the necessi
ty that the words "Marco Pecci" formed the name
of a living, or recently dead, individual despite the
fact that repeated representations to that require
ment had been made to them.
At the outset the examiner on October 4, 1978
uttered the non sequitur:
The Registrar is of the opinion that consumers are unable to
discriminate between fictitious names and actual names. To the
consumer, MARCO PECCI, would, therefore, be considered the
name of an individual.
It is quite true that the consuming public might
experience difficulty in discriminating between
names bestowed upon imaginary persons and real
persons. Scarlett O'Hara might well be considered
by a person who had not read the novel, "Gone
with the Wind", or seen the film made from the
book as the name of a real person. But it remains
the name of an imaginary person and as such is
subject to registration unless shown to be a name
of a living individual.
It is not enough that the fictitious name may
resemble the name that could be borne by an
actual person or might be thought by the public to
be names or surnames. That thought only becomes
material when it is established by evidence that
there is a living person of the name or surname in
question.
Representations to that effect by the applicant's
agent fell upon deaf ears.
The examiner responded by quoting the test
enunciated as to what is "primarily merely" a
name or surname of an individual who is living
completely overlooking that the condition prece
dent to embarking on that consideration is that
there must be evidence that an individual bearing
that name is living or recently died.
Without any indication whatsoever that such
evidence was in her possession the examiner
applied the "primarily merely" test and said:
The Examiner feels the reaction of a person in Canada of
ordinary intelligence and of ordinary education in English or
French would be to think of MARCO PECCI as the name of an
individual.
Again there is a studious avoidance of any refer
ence to a "living" individual.
Jackett P. has said in the Standard Oil case
(supra) that the Registrar was entitled to conclude
from city directories that "Fior" was the name of
ten living persons in Canada. Before him the evi
dence was to like effect in an affidavit sworn by
the Registrar.
In this instance if any such evidence was in the
possession of the Registrar or the examiner no
reference whatsoever was made to its existence.
The fallacy of the approach adopted by the
examiner is to reverse the approach approved and
followed in the Standard Oil case. What the test
contemplates is that the general public of Canada
would think the words to be the name of a living
individual if there be a living individual of that
name and not because the general public so thinks
that makes it the name of a living individual.
Paragraph 12(1) (a) prohibits the registration of
a word that is the name of a living individual not
one that "resembles" or one that the public thinks
is the name of an individual but rather that it is, in
fact, the name of a living individual.
It was not until February 21, 1980 that the
examiner indicated that she was in possession of
information that there was one listing of the name
"Pecci" in Canada.
That is susceptible of being evidence that there
is at least one living person in Canada who bears
the surname "Pecci".
In fact the appellant, not the Registrar, found
and produced an affidavit on appeal establishing
that there were two such listings in Canada, one in
Toronto, Ontario of Mario Pecci and one in
St. Catherines for a G. Pecci.
That evidence would be sufficient to launch
consideration of the question whether the rarity of
the surname would warrant the conclusion that it
is principally if not exclusively a surname rather
than the brand or mark of a business.
On the basis of the Fior case, the result with
regard to "Pecci" as a surname might be the same
but that is not the question here in issue.
The trade mark sought to be registered is not
"Pecci" but "Marco Pecci".
"Marco Pecci" is susceptible of being considered
the name of a living individual but before it can be
accepted as such to warrant the application of the
test to determine whether "Marco Pecci" is the
name of a living individual there must be evidence
to that effect. The name "Marco Pecci" cannot be
the name of an individual if there be no such
person.
Despite the repeated representations that para
graph 12(1)(a) requires the words to be the name
of a living individual or one who had died within
the preceding thirty years the examiner persisted
in her opinion that the great majority of Canadi-
ans would react to the words "Marco Pecci" as
being the name of an individual and completely
disregards the necessity of that individual being a
living individual or one recently dead. This too was
adopted by the Registrar as the basis of his
decision.
That being so the Registrar has failed to bring
the matter within the provisions of paragraph
12(1)(a) so as to render the trade mark not regis-
trable and accordingly erred in so deciding.
The necessity of there being a living individual
bearing the name sought to be registered was
never mentioned in any one of the many rejections
or in the ultimate decision by the Registrar.
Persons are presumed to mean what they write
and especially so when those persons are in posi
tions which demand care and precision.
Accepting the proposition advanced and alleged
in paragraph 3 of the statement of defence, which
is not supported by nor consistent with the facts,
that both the Registrar and the examiner were
well aware that the relevant provision of the Trade
Marks Act requires the name to be that of a living
individual and that the failure to refer to a "liv-
ing" individual but only to an "individual" despite
the language of paragraph 12(1)(a) was careless
or shoddy workmanship, which ought not be coun
tenanced, nevertheless there was no evidence
before the Registrar to warrant the conclusion that
there was a living individual bearing the name
"Marco Pecci".
There was evidence before him of at least two
living persons in Canada bearing the surname
"Pecci".
But the trade mark sought to be registered is not
"Pecci". It is "Marco Pecci". That is a forename
and a surname and as such is much more readily
susceptible as being looked upon as the name of an
individual.
Apparently the examiner had referred to a book
entitled, "A Dictionary of Modern British and
American Given or Christian Names" which listed
"Marco" as a masculine forename.
There was no evidence, however, that any of the
few male persons bearing the surname "Pecci"
also bear the given name "Marco".
Certainly not in Canada because an affidavit
Celia Laframboise submitted on behalf of the
appellant rebuts that possibility. A "Mario" did
not respond to "Marco".
It is, however, within the remote possibility that
one of the very few individuals bearing the sur
name "Pecci" elsewhere in the world who may
well be married and has sired a male child upon
whom the forename "Marco" has been conferred.
That being the case the matter is subject to the de
minimis rule from which it follows that the Regis
trar did not have before him any suitable evidence
of the existence of a person bearing the name of
"Marco Pecci".
Judson J. in the Coles Book Stores case (supra)
pointed out that the wording of paragraph
12(1) (a) was introduced into Canadian legislation
for the first time in 1953 and was a direct copy of
the United States legislation of 1946. The law in
the United States and in Canada as to the inter
pretation and applicable tests is identical as is to
be seen in comparable decided cases.
For that reason I pay deference to decisions in
the United States.
In re Mangel Stores Corporation (165 USPQ
22 (1970)), which was an appeal from an examin
er of Trade Marks to the Patent Office Trade
marks Trial and Appeal Board comprised of a
panel of three members, the examiner had refused
registration of the word "Presscott" as a trade
mark on the ground that it is primarily merely a
surname.
In this respect the examiner said [at page 22]:
"PRESCOTT" is a common surname and adding an addi
tional "s" thereto does not change the sound or the significance
of the name, nor does it change the appearance thereof to any
substantial degree. It has the impact of a surname, and it is
believed it would be recognized primarily and merely as a
surname by the purchasing public.
To this the Appeal Board replied [at same
page] :
The question of whether or not applicant's mark "PRESS-
COTT" is a surname is one of fact, and it is not enough for an
affirmative finding in this regard that it looks and sounds like a
recognized surname. It is interesting to note, moreover, that the
examiner at the oral hearing held in this case admitted that
after making an extensive search she was unable to find a single
usage of "PRESSCOTT" as a surname.
The decision of the examiner was accordingly
reversed [on that ground].
This result is in accord with the conclusion I
have recorded.
For the foregoing reasons the appeal is allowed
and the matter is referred back to the Registrar
for the appropriate administrative action.
The appellant in its notice of appeal did not ask
for costs nor did the Registrar in his reply. The
solicitors for the parties did not do so in deference
to the practice of which both were well aware of
not awarding costs for or against the Registrar of
Trade Marks in the Court of first instance on
appeal. The practice may differ in the Appeal
Division.
Since the successful party, which is the appel
lant, did not ask for its costs there will be no award
of costs against the Registrar.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.