Document Fragment View

Matching Fragments

(26) While explaining what was meant by "common property" in respect of the trade mark in question, Lord President observed (at page 716) as follows:

"The case of In re Lloyd and Sons' Trade Mark; Lloyd v. Bottomley, (1884) 27 Ch D 646 was a case where a mark was removed after five years at the instance of a person who was being attacked, and the ground for removal of the mark was that it ought never to have been on the Register because it was common property, and that no one could appropriate it. It may be as well to digress and explain what common property means. When this Registrar was first introduced, it was obvious that among people, who would apply to be registered, would be not only those who, for the first time, had invented what was apparently a new Trade Mark, and therefore proposed to get the priority of others by its registration, but also persons who sought to put on the Register what they had already been using. There were, of course, many instances where more than one person had been using the same Trade Mark, and accordingly that question very early came up. The Act evidently contemplated something of the sort, for in Section 71, dealing with the application for registration, it expresses itself thus:
"Where each of several persons claims to be registered as proprietor of the same Trade Mark the Comptroller may refuse to register any of them until their rights have been determined according to law, and the Comptroller may himself submit or require the claimants to submit their rights to the Court." Now, the meaning of that Sections is, I think, clear in itself. Of course if one person wanted to register a Trade Mark who had been using it, and another, person came and said "I want to register it as well, but I have not been using it" that would be a clear case- it would show that there was a right in the one and not in the other. But in the case which I have mentioned, where more than one had in the past been using a Trade Mark, there were rules settled by decisions to this effect, that up to the number of three there would be registration of persons who had bona fide used the same mark, but if more than three applied and said they had used the mark, then the mark was really such common property in the trade that it was not registrable at all. The import of all this is, I think, that the true meaning of a Trade Mark is the association of the mark with one person's goods. If you show that large number of people have all been using the same mark, then it becomes a practical impossibility to say that the mark was associated with any one person's goods. And accordingly, I think the matter is well settled that the registration of a mark, an old mark, may be given to persons not exceeding the number of three but that if more than three are shown to have used it, it is common property and cannot be registered at all."

Having thus explained what was meant by the expression "common property" in a trade mark, the Lord President proceeded to consider the question as to what was meant by property in a mark in the state of facts antecedent to the registration of the mark in that case and observed (at page 720) as follows:

"Now what we find here is Board and Son coming forward and entering the "Cat and Barrel" but nobody also coming forward. The if it were a new mark there could have been no question. But it was not a new mark - it was an old one; and therefore you have to consider the question of whether the mark was common property and in doing so you must consider what you mean by property in a mark in the state of facts antecedent to the registration.

It is upon these observations that Mr. Shah strongly relied for the purpose of showing that the property in a mark could not be acquired merely by a few isolated sales but that it could be acquired only if the goods to which it was attached were sold in such large quantity that in the eye of the public the mark came to be associated with those goods. It may be observed that Mr. Shah did not rely upon these observations for the purpose of supporting his contention that there could never be a property in a trade mark, but to support his other contention that property in a trade mark could only be acquired after long user thereof. I am afraid, the aforesaid observations of the Lord President do not lend any support to the contention so boldly stated by Mr. Shah. It was only in connection with the question as to when a trade mark could be said to be common property so as to enable a person alleging the trade mark to be common property to contend that the mark which was registered should never have been registered, that the Lord President very rightly, with respect, explained what property in such a mark would mean. This is evident from the last part of the aforesaid observations of the Lord President in which he said that if a mark was allowed to be on the Register all the time that the mark in that case had been, it was not too much to say that it never ought to have been there. This onus could only be discharged by the evidence of several traders who had sold the goods bearing the mark in question in considerable quantities so as to acquire reputation in the market that the goods bearing that mark were the goods of the traders using it.