clr/1977/1977_3_427.pdf

(1972)3 C.L.R. 548 and I.W.S. Nominee Co. Ltd. v.TheRepublic

(1967)3 C.L.R.582 followed. Trade Marks—Registration—Oppositionto—Section 20 of the Trade Marks Law, Cap. 268—Application to register word "MIANTOR" in class5 of Schedule IV of the TradeMarks Rules, 1951-1971—Oppositionby owners of registered trade mark "MIDAMOR"—Both trade marks relating to goods which are the same or of the same description—Reasonable likelihoodof deception or confusion—Sections 13 and 14of the Law—Onusof proof—Comparison of wo trademarks by Registrar a legitimate method of approach—Degree of resemblance necessary—Duty toprotectpublicfromconsequences of deceptionand confusionstill exists in caseofpharmaceutical products even where thereare restrictions upontheir distribution—And possibility of mistakes through badhandwriting in prescriptions a factor to be takeninto consideration —Respondent Registrar acted properly in refecting application. Constitutional Law—Courts—Opposition proceedings under section 427 COMPANY CARLO ERBA SPA, VIA CARLO IMBONATI v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OK*TRADE MARKS) 1977 Nov. 29 COMPANY CARLO ERBA SPA, VIA CARLO IΜBONATI v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) 20 of the Trade Marks Law, Cap. 268 before Registrarof Trade Marks—Registrarnot a "Judicial Committee" or "ex­ ceptionalCourt" contraryto Article 30.1 of theConstitution. Natural Justice—Opposition proceedings beforeRegistrar of Trade Marks undersection 20 of the Trade Marks Law, Cap. 268— Registrar not acting as aJudgeinhis owncause. The applicant applied to the respondent Official Receiver and Registrar of Trade Marks for the registration of the word "MIANTOR" as a trade mark in class 5 of Schedule IV of the Trade Marks Rules, 1951-1971, in respect of pharma­ ceutical, .veterinary and sanitary substances, infants' and in­ valids' foods, plasters, material for bandaging, material for stopping teeth, dental wax, disinfectants, preparation for kill­ ing weeds and destroying vermin. The application was accept­ ed for .registration in Part "A" of the Register of Trade Marks and was duly advertised in theofficial Gazette of theRepublic. On the 19th April, 1975, Notice of Opposition under section 20

(2)of the TradeMarks Law, Cap. 268, was filed by Merck & Co. Incorporated, who are the owners in Cyprus of re­ gistered trade mark No. 13026 "MIDAMOR" dated 30.6.70 in respect of pharmaceutical, veterinary and sanitary substan­ ces. The grounds of the opposition were the following: The trade mark "MIANTOR" resembles to the trade mark "MIDAMOR" and if it will be allowed to be registered it will cause confusion among doctors and chemists. 10 15 20 25 The applicants by their counterstatement dated 3rd May, 1975, which was filed under section 20

(4)of Cap. 268, al­ leged by way of preliminary objections: (

1. a)That the Registrar of Trade Marks cannot deal with this case because he had already accepted the trade mark 'MIANTOR" for registration;and 30 (
2. b)that the trial «before the Registrar of Trade Marks is contrary to Article 30 of the Constitution of Cyprus. On the merits applicants alleged that there does not exist confusion between the two trade marks, which are different both phonetically and in writing and because the two trade marks are not offered freely ίο the public, but after a doctor's prescription to a chemist. Thus, the confusion may occur only among disinterested public and .notamong experts like doctors 428 35 who are in a position and are obliged to distinguish the one drug from the other and to make the necessary prescription; . the .public, and in particular the patient, do not take part in the selection of the drug, nor does the chemist, unless he fails in his duty to make certain that he gives out the right drug. -5 In examining the opposition under section 20

(5)* of Cap. 268 the respondent considered first whether any of the goods in respect of which the applicants were seeking registration, were the same or of the same description as any of the goods *>f the opponents said Registration No. 13026 (see sections 13 and 14 of Cap. 268). 10 15. 20 25 30 - After answering this question in the affirmative the Registrar then considered the question whether "presuming user for the opponents of their mark in a normal and fair manner in relation to the respective goods will there be a reasonable likelihood of description or confusion arising amongst a substantial number of persons if the applicants should also use their mark in a normal and fair manner in relation to any of - the goods included in .their specification". In considering this question the Registrar compared the two trade marks by looking at the words "MIDAMOR" and "MIANTOR"; and after finding 'that in opposition proceedings, based on sections 13 and 14 of Cap. 268, the onus of proof was upon the applicants to establish that their trade mark is registrable, he came to the conclusion that the applicants failed to discharge this onus and directed that the opposition should succeed because "there can be a real tangible danger of confusion amongst a substantial number of persons, within the meaning of section 14

(1), if applicants' mark is allowed to proceed for registration". Hencethe present recourse. Counsel for the applicant contended: 35 (

1. a)That once the respondent Registrar accepted the application for the registration of the trade mark, he could not himself hear and determine the opposition to it and so act as.a judge in his own cause; . and that by doing so he was making himself "an . exceptional Court"- the establishment of which is prohibited under Article 30.1 of the Constitution. *Quoted at p.439post. 429. 1977 Nov. 29 .COMPANY CARLO ERBA SPA, VIA CARLO IMBONAT1 v;i REPUBLIC (OFFICIAL RECEIVER AND; REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS). 1977 Nov. 29 COMPANY CARLO ERBA SPA, VIA CARLO IMBONATI v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) (
2. b)That the trade mark sought to be registered is not likelytodeceiveor cause confusion. (
3. c)That the Registrar should have confined his examination to the contents of the affidavit filed on behalf of the opponent to the effect that the two trade 5 marks "might cause confusion by a dispenser throughbad handwritingbya doctor". Held,

(1)that the adjudication by the Registrar on matters relating to opposition to registration of a trade mark under section 20 of Cap. 268, does<notamount to an exercise of ju- 10 dicial authority; that the Registrar whilst acting in.that capacity was not "a judicial Committee" or "exceptional Court" in the sense of Article 30.1 of the Constitution; that he was not performing judicial but administrative duties and he was not acting as a judge in his own cause; and that, accordingly, 15 applicant's contention must fail (see Merck v. The Republic

(1972)3 C.L.R. 548 and I.W.S. Nominee Co. Ltd. v. The Republic

(1967)3 C.L.R. 582).

(2)That the respondent Registrar properly directed himself on the law as to the onus of proof in cases of opposition 20 proceedings; that he rightly treated the opposition as based on sections 13 and 14 of Cap. 268; and that after deciding the matter under section 14

(1)there was no problem for him to disallow the registration of the applicants' trademark also under section 13 as the scope for possible confusion under 25 section 14is wider than the scope for confusion under section 13 (see Harker StaggLtd's ("Angelox" "Aludrox" [1954] 71 R.P.C. 136).

(3)That when comparing the two trade marks by looking at the words "MIDAMOR" and "MIANTOR", which formed 30 part of the evidence, the Registrar was considering the evidence before him in the sense of section 20

(5)of Cap. 268; that such a comparison was a legitimate method of approach in the circumstances; and that he rightly pointed out that the two words consisted of the same number of letters with the 35 same prefix MI, with the same suffix OR and having the letter *A* amongst their body, -thusmaking the number of letters which the said two words have in common to five out of seven.

(4)That in case of pharmaceutical products even where 40 there are restrictions upon their distribution such as prescrip- 430. 5 10 1977 tion, the duty to protect thepublic or ultimate purchaser from Nov. 29 the consequences of deception and confusion still exists and thepossibility of a mistake throughhad handwriting is a factor COMPANY to be taken intoconsideration to that end; thatonce the appliCARLO ERBA cation for the registration was in respect of all the goods in SPA, VIA CARLO IΜBONATI class 5 of Schedule IV, the Registrar acted properly in the v. circumstances; and that, accordingly, the recourse must be REPUBLIC dismissed. (OFFICIAL Application dismissed. RECEIVER AND REGISTRAR IN Cases referred to: Merck v. The Republicand Another

(1972)3 C.L.R. 548; I.W.S. Nominee Co. Ltd. v. The Republic

(1967)3 C.L.R. 582; 15 Smith Hoyden and Co. Ltd's Application [19461 63 R.P.C. 87 at p. 191; MarkerStaggLtd's ("Angelox" "Aludrox") [1954] 71 R.P.C. 136; Seixo v. Provezende [1865] LJR. 1Ch. 192; Harker Stagg Ltd's Application [1953] 70 R.P.C. 205; 20 Geigy A.C. v. ChelseaDrug & Chemical Co. Ltd. [1966] • R.P.C. 64; Stainesv. LaRosa [1953] 1W.L.R. 474 atp.

1. Recourse. Recourse against the refusal of the Registrar of Trade 25 Marks to accept for registration inclass 5 of ScheduleIV of theTrade Marks Rules, 1951 the word "MIANTOR". A. Emilianides, for theapplicant. 30 R. Gavrielides, Counsel of the Republic, for there­ spondent. Cur. adv.vult. Thefollowing judgment was delivered by:- A. LOIZOU,J.: The applicant applied to therespondent Official Receiver and Registrar of Trade Marks for the registration of theword "MIANTOR" as a trade mark in 35 class 5 of Schedule IV of the Trade Marks Rules, 195Γ­ Ι971, in respect of pharmaceutical, veterinary and sani431; HIS CAPACITY AS REGISTRAR OF TRADE MARKS) 1977 Nov. 29 COMPANY CARLO ERBA SPA, VIA CARLO IMBONATI v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) tary substances, infants' and invalids' foods; plasters, material for bandaging; material for stopping teeth, dental wax; disinfectants; preparation for killing weeds and destroying vermin. The application was accepted for registration in part 5 "A" of the Register of Trade Marks. It was duly advertised in Supplement No. 5 to the official Gazette of the Republic, No. 1159 dated 20.12.74 at p.
2. On the 19th April, 1975, Notice of Opposition was filed by Merck & Co.Incorporated who are the ownersin Cyprus 10 of registered trade mark No. 13026 "MIDAMOR" dated 30.6.70 in respect of pharmaceutical, veterinary and sanitary substances. The grounds of theopposition werethe following: The trade mark "MIANTOR" resembles to the trade 15 mark "MIDAMOR" and if it will be allowed to be registered it will cause confusion among doctors and chemists. The applicants by their counterstatement dated 3rd May, 1975,allegedthefollowing: (A) Bywayofpreliminary objections: That the Registrar of Trade Marks cannot deal with this case because he had already accepted the trade mark "MIANTOR" for registration; and that the trial before the Registrar of Trade Marks is 25 contrary to Article 30 of the Constitution of Cyprus. (B) On the merits applicants alleged the following: That there does not exist confusion between the two trade marks, which are different both phonetically and in writing and because the two trade marks are not offered 30 freely to the public, but after a doctor's prescription to a chemist. Thus, the confusion may occur only amongdisinterested public and not among experts like doctors who are in a position and are obliged to distinguish the one drug from the other and to make the necessary prescrip- 35 tion; thepublic, and in particular thepatient, do not take part in the selection of the drug, nor doesthe chemist, un432.- 20 less he fails in his duty to make certain that he gives out the right drug. The opponents filed an affidavit by their Assistant Secretary Charles E. Childs, Jr., alleging therein that the 5 two trade marks "when used on the same or similar products, may cause confusion, by a dispenser through bad handwriting bya doctor and, therefore, couldlead tovery serious consequences". Applicants filed three affidavits in support of their 10 counterstatement: One, by Spyros Enotiades, a merchant of drugs in Cyprus, the second by Doctor Ioannis Polydorides and the third by Andreas Karavias, a chemist. The above three affiants alleged that the two trade marks are different and cannot cause confusion or de15 ception, as they involvepharmaceutical substances-of different use,onlydispensed through chemists and after doctors'prescription. Further, they allegethat the trade mark "MIANTOR" is used as a spasmolytic drug whereas the trademark "MIDAMOR" is used as a diuretic drug; that 20 both the writing and the pronunciation of the two trade marks are different; and that in case of doubt, chemists should consult the doctors who issued the prescription, and,.therefore, therecanbeno confusion. A hearing took place before the Assistant Registrar of25 Trade Marks, acting as Registrar of TradeMarks, on the 3rd February, 1976, under the provisions of rule 48 of the TradeMarks Rules, 1951-1971 and section 20 of the Trade Marks Law, Cap. 268, where both parties wererepresented by counsel. 30 The Registrar delivered his reserved judgment on the 9th March, 1976 and for the reasons given therein he found thatthe applicantshad not succeededin discharging the onus of proof which lied on them under sections 13 and 14

(1)of the Trade Marks Law, Cap. 268 and that 35 the opposition should succeed and directed that theapplication for the registration of the trade mark applied for should not proceed, and made no order as to costs. This decision is the subject of the present recourse. 433 1977 Nov. 29 COMPANY. CARLO ERBA SPA, VIA CARLO IMBONATI v., REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) 1977 Nov: 29 COMPANY CARLO ERBA SPA, VIA CARLO IMBONATI v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) The first ground of law relied upon by the applicant is that once the Registrar of Companies accepted the application for the registration of the trade mark, he could not himself hear and determine the opposition to it, and so act as a judgein hisown cause;also, thatby doing so, 5 he was making himself "an exceptional court" the establishment of which is prohibited by Article 30.1 of the Constitution. By section 20 of the Trade Marks Law, when an application for registration of a trade mark has been ac- 10 cepted, the Registrar must, after such acceptance, cause the application to be advertised in the manner prescribed by the Trade MarksRules and anyperson may within the prescribed timefrom thedateof the advertisement ofsuch an application give notice to the Registrar of opposition 15 to the registration. The procedure thereafter, is governed both -by sub-sections

(3),

(4)and

(5)of s. 20 and the Trade Marks Rules (1951-1971) and in particular rules 30-56. Upon completion of the hearing and on aconsideration of the evidence the Registrar decides whether and subject to what conditions or limitations, if any, the re- 20 gistration istobepermitted. The same legal point was raised by learned counsel in the case of E. Merckv. The Republicandanother

(1972)3 C.L.R. 548, but in relation to the refusal of the Registrar of acceptance of that application, under section 19 of the Trade Marks Law and rule 32 of the Trade Marks Rules which governs the cases of hearings on the Registrar's objections. In that case I held that registration of trade marks is a matter falling within the domain of public law and consequently thefunctions of the Registrar of Trade Marks under rule 32 are administrative and not judicial ones and the exercise of the powers and duties of the Registrar under section 19 of the Trade Marks Law, amounts to an act or decision falling within the ambitof Article 146of theConstitution, giving thisCourt competence to deal with it in its administrative jurisdiction. I referred in support of that view to the case of I.W.S. Nominee Co.Ltd.v. TheRepublic

(1967)3 C.L.R. 582 whichI followed. I also held that the adjudication on any matter under the said section did not amount to an exercise of judicial authority nor could itbe said that the 434 25 1977 Nov. 29 Registrar of Trade Marks acting in that capacity was "a judicial Committee" or "exceptional Court" in the'sense of Article 30.1 of the Constitution, and I decided that rule 32 was not unconstitutional as it provided only pro5 cedural fairness in the exercise of an administrative func­ tion and the rule of naturaljustice that no one should be a judge in his own cause, was not in any way violated. Further, I said that the Registrar is not performing judi­ cial but administrative duties andwhen in the exercise of 10 his administrative discretion such a person or organ or authority forms a primafacie opinion and invites thein­ terested parties to be heard, it cannotbe said tobe acting as ajudgeinhisown cause. COMPANY CARLO ERBA SPA, VIA CARLO ΙΜΒΟΝΑΤΙ v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE. MARKS) In my view, the same principles govern also a case 15 under section 20 whereby the Registrar of Companies does not register but accepts the application for registra­ tion and by causing the application as accepted to be ad­ vertised in theofficial Gazette,he affords anopportunity to any person to give notice of opposition to its registra20 tion. In other words, he performs an administrative duty which involves due inquiry and he follows a procedure provided for both by the law and the relevant rules. The applicant, therefore, cannot succeed on this ground. Having dealt with these preliminary objections raised 25 by theapplicantin thisapplication—raised butnot argued before theRegistrar—I turnnow to thegroundsin respect of the substance of the case, which are to the effect _ (a) that the trade mark sought to be registered is not likely todeceive orcause confusion, and 30 (b) that the Registrar should confine his examination to the contents of the affidavit of Mr. Childs filed on behalf of the opponent, that the two trade marks "might cause confusion by a dispenser through bad handwriting by adoctor". 35 The Registrar properly directed himself on the law as to the onus of proof in cases of opposition proceedings under sections 13 and 14 of the TradeMarks Law which, onus of proof, is placed upon the applicants who have to establish both that their trade mark is registrable andthat 40 theopposition is notjustified. Herightly treated the oppo­ sition as based on sections 13 and 14 of theLaw, inview 435 t 1977 Nov. 29 COMPANY CARLO ERBA SPA, VIA CARLO IMBONATI v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) of its wording which reads, "The trade mark 'MIANTOR' resembles.with the trade mark 'MIDAMOR' and if its registration is permitted, it will cause confusion among the doctors and chemists". On examining the objection under section 14

(1)of the Law, two main questions were considered. The one was, whether any of the goods in respect of which the applicants were seeking registration, were the same or of the same description as any of the goods of the opponents Registration No.

1. This question was answered in the affirmative and without much difficulty, as on the facts there was no dispute that the opponents were registered in class 5 of Schedule IV of the Trade Marks Rules in respect of pharmaceutical, veterinary and sanitary substances and the applicants wished to be registered for all the goods in class IV of the said Schedule. Consequently, it could clearly be seen that the goods comprised in the applicants' specification were the same or of the same description as those of the opponents' goods. The second question which, according to the Registrar, called for an answer, because of the affirmative one given to the first question, was whether "presuming user for the opponents of their mark in a normal and fair manner in relation to the respective goods, will there be a reasonable likelihood of deception or confusion arising amongst a substantial number of persons if the applicants should also use their mark in a normal and fair manner in relation to any of the goods included in their specification?" The question for decision posed once it was decided that the goods concerned were the same or of the same description, was the one formulated by theCourt in Smith Hayden and Co. Ltd's application [1946] 63 R.P.C. 87 at p. 101 cited in Kerry's Law of Trade Marks and Trade Names, 10th Ed. p. 172"Assuming use (by one or more of the registered proprietors of the marks cited) in a normal and fair manner for any of the goods covered by the registration of those marks, is the Court satisfied that there will be no reasonable likelihood of deception or confusion among a substantial number of persons if (the applicants for registration) use their mark normally 436 10 15 and fairly in respect of any goods covered by their proposed registration?" 5 10 15 20 25 30 35 40 He further stated that evidence was filed on behalf of the parties on the question of whether it was likely that deception or confusion might arise, but acted on the principle that this question is for the Registrar alone and he cannot abdicate a decision of that matter to witnesses (Kerly's ibid, p. 475, paras 17-34). But the evidence adduced by the parties in this case by way of affidavits already mentioned did not cover all the goods for which the trade marks involved were concerned. The applicant's evidence was restricted to the use of one drug, a spasmolytic drug under the trade mark "MIANTOR" and to the use of a diuretical drug under trade mark "MIDAMOR" which are only sold by dispensers and after doctors' prescriptions. Opponents' evidence spoke of confusion by a dispenser through bad handwriting by a doctor, but did not specify whether that was in respect of all goods for which they were registered or not. The Registrar then proceeded to compare the two trade marks, first, by looking at thewords and went on to say the following: "It can be seen at a glance that both words have the same number of letters, i.e. 1 each; they both begin with the same prefix, MI, and they end with the same suffix OR. They both have the letters which the said two wordshavein common to
2. In comparing the two trade marks involved in the present case I had in mind that it has been stated above and also the rules of comparison as they appear in Kerly's Law of Trade Marks, and Trade Names, 10th Edition, at pararaphs 17-07 et seq. I cite from the same paragraph 17-07: 'You must take the two words. You must judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks' (Pianotist Co. Ltd's Appn [1906] 23 R.P.C. 774, at p. 777). 437 1977 Nov. 29 1977 'Nov. 29 COMPANY CARLO. ERBA SPA, VIA CARLO ΙΜΒΟΝΑΤΙ v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) In that connection I refer also to what was said in the case of Aristoc Limited v. Rysta Limited [1945] A.C. 68; 62 R.P.C. 65 particularly to what was said in the Court of Appeal in thatcase by Luxmoore, L.J., at [1945] A.C.
3. The learned Lord Justice said this: (Extract cited from Buler T.M. [1966] R.P.C. 141, from p. 146, where it is cited.). The answer to the question whether the sound of one word resembles too nearly the sound of another so as to bring theformer within the limits of section 12 of the Trade Marks Act, 1938, must nearly al­ ways depend onfirst impression, for obviously aper­ son who is familiar with both words will neither be deceived nor confused. It is the person who only knows the one word, and has perhaps an imperfect recollection of it, who is likely to be deceived or confused. Little assistance, therefore, is to be ob­ tained from a meticulous comparison of the two words, letter by letter and syllable by syllable, pro­ nouncedwith theclarity tobe expectedfrom ateach­ er of elocution. The court must be careful to make allowance for important recollection and the effect of careless pronunciationand speech on the partnot only of the person seeking to buy under the trade description,but also of theshop assistant ministering tothatperson's wants'. Having made a careful comparison of the two trade marks in the light of all facts and circumstan­ ces pertaining tothetrademarks involved andinthe light of the relevant legal situation, I have come to the conclusion that there can be a real tangible danger of confusion amongst a substantial number of persons, within the meaning of section 14

(1), if applicants' mark is allowed to proceed to registra­ tion". After the Registrar decided the matter under section .14

(1)there was no problem for him to disallow the re­ gistration of the applicants' trade marks also under sec­ tion 13,as the scope for possible confusion under section 14 is wider thanthescope for confusion under section 13. For thispropositionherelied onthejudgment of Evershed 438 10 15 M.R. in the case of Harker Stagg Ltd's ("Angelox" "Aludrox") [1954] 71 R.P.C. 136, and reached the sub fudice decision.. From the approach of the Registrar as above outlined, it isp apparent that he acted in accordance with the provi­ sions of section 20

(5)of the Law, whereby, "...The Re­ gistrar... shall, after hearing theparties if so required, con­ sider the evidence and decide whether and subject to what conditions or limitations, if any, registration is to be per10 mitted". . , * ', 5 In my view, when comparing the two trade marks by looking at the words "MIDAMOR" and "MIANTOR" which, formed part of the evidence, he was "considering the evidence before him" and such a comparison is a le15 gitimate method of approach in the circumstances. He rightly pointed out that the two words consisted of the same number of letters with the same prefix MI with the same suffix OR and having the letter Ά ' amongst their body, thus making the number of letters which the said 20 two words have in common to five out of seven. No doubt, as stated by Lord Cranworth in Seixo v. Provezende [1865] L.R. 1 Ch. 192, "What degree of resem­ blance is necessary... is from the nature of things inca­ pable of definition a priori. And the standard of course 25 is not always the same". In the case of pharmaceutical products even where there are restrictions upon their dis·. tribution such as prescriptions, the duty to protect the public or ultimatepurchaser from the consequences of de­ ception and confusion still exists and the possibility of a 30 mistake through bad handwriting is a factor to be taken into consideration to that end. Support for thisproposition can be found in the cases of Harker Stagg Ltd's Applica­ tion [1953] 70 R.P.C. 205 and Geigy A.C. v. Chelsea Drug & Chemical Co. Ltd. [1966] R.P.C. 64. 35 Once, therefore, the application for the registration was in respect of all the goods in class 5 of Schedule IV, the Registrar acted properly in the circumstances. After all, ' as pointed out in Kerly's Law of Trade Marks (supra) p. 51 (and the authority for that proposition given is the 40 case of Staines v. La Rosa [1953] 1 W.L.R. p. 474 at p. 43,9 1977 Nov. 29 COMPANY CARLO ERBA SPA, VIA CARLO IMBONATI REPUBLIC, (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY" AS REGISTRAR OF TRADE, MARKS) 1977 Nov. 29 COMPANY CARLO ERBA SPA, VIA CARLO ΙΜΒΟΝΑΊΊ v. REPUBLIC (OFFICIAL RECEIVER AND REGISTRAR IN HIS CAPACITY AS REGISTRAR OF TRADE MARKS) 482), "even if objections are no clearly taken before the Registrar or the Court, the tribunal for the interests of the purity of the register should, in a plain case, reject the application". For all the above reasons the present recourse fails but in the circumstances I make no order as to costs. Application dismissed. No order as to costs. 440