The House had to consider changes between the two Acts, and in particular the meaning of the phrase ‘in connection with’, and what sort of trade was relevant for the purposes of what the mark indicated, under the 1938 Act.
Held: The respondents were not entitled to register RYSTA as a trade mark in respect of stockings in the face of the appellants’ ARISTOCRAT registered mark for the same goods.
The wording of the 1938 Act did not materially broaden what was required under the 1905 Act.
The concept of imperfect recollection may be applied to trade marks other than those consisting simply of an invented word
Lord MacMillan said: ‘A connexion with goods in the course of trade, in my opinion, means, in the definition section, an association with the goods in the course of their production and preparation for the market’.
Lord Wright: ‘The word ‘origin’ is no doubt used in a special and almost technical sense in this connexion, but it denotes at least that the goods are issued as vendible goods under the aegis of the proprietor of the trade mark, who thus assumes responsibility for them, even though the responsibility is limited to selection like that of the salesman of carrots on commission in Major Brothers v Franklin and Son.’
Judges:
Lord Macmillan, Lord Wright
Citations:
[1945] AC 68, [1945] 1 All ER 34, (1944) 1B IPR 467
Statutes:
Trade Marks Act 1905, Trade Marks Act 1938
Jurisdiction:
England and Wales
Cited by:
Cited – Apple Corps Ltd v Apple Computer Inc ChD 8-May-2006
The parties had several years ago compromised an action for trade mark infringement on the basis that the defendant would not use the Apple logo in association with areas of commercial activity, including the sale of ‘work whose principal content is . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 07 May 2022; Ref: scu.241550