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3 CX.R. 1980 March 17 [L. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION 1. SABA, KYPRIS & CO., 2. MICHAEL PSARAS, Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE REGISTRAR OF TRADE M

Article 26

.1**** of the Constitution in that they nullify the applicants' right of entering freely into a contract of agenls and/or any other contract between themselves and the owners of trade marks. (c) That the decisions complained of and/or the definition of "practising as an advocate" as set out in the Advo­ cates Law (supra)

Article 25****' : ' of the Constitution.

(d) That the decisions complained of and/or the definition of "practising as an advocate" as set out in the Advocates Law (supra)

Article 28

****** of the Constitution in that they discri­ minate against the applicants in favour of advocates. * Section 2(I)(iiil reads as follows: " 'practising as an advocate' means— (iii) the registration of trade marks or patents on behalf of a client anil the appearance before any administrative authority for the aforesaid purposes". ** Section 60is quoted at p. ]56 post. *** Rule 14is quoted at pp. 156-57 post. ****Article 2ό.Ι is quoted at p. 160 post. ***** Article 25 of theConstitution is quoted at pp. 160-61 post. '***** Article 28 of theConstitution is quoted at p. 161 post. 151 SABA &Another v. Republic

(1980)Held,
(1)(on the question whether section 60 of the Trade Marks Law, Cap. 268 and rule 14 of the Trade Marks Rules, 1951-1971 have been impliedlyrepealed by the Advocates (Amendment) Law, 1975) that the Trade Marks Law and the rules made thereunder allowregistration ofa trade mark bya duly authorised 5 agent acting on behalf of a proprietor; that an agent so acting does not practise as an advocate where the true relationship is that of principal and agent; that the word "agent" in its wider signification and in a general sense may apply to anyone who by authority performs, in a representative capacity, an act for \Q another; that in the legal sense an agent is primarily a person employed to bring about business relations between the principal and third persons, a sort of conduit pipe connecting the two other parties;that under theTrade MarksLawthere isnothing to prevent the proprietor of a trade mark to appear in person like \5 any litigant in civil proceedings and do any act in relation to his trade mark and it may not reasonably be argued that he cannot authorize an agent to act for him in this respect; that this always on the assumption that the relationship between the two is that of principal and agent; that having come to this conclusion and 20 in the light of the legal provisions on the point this Court does not feel constrained to hold that the relevant sections of the Trade Marks Law and theTrade Mark Rules have been impliedly repealed by the provisions of the Advocates (Amendment) Law, 1975. 25
(2)(On the question whether the applicants in this case were, having regard to the admitted facts and circumstances,practising as advocates within the meaning of the Advocates Law, 1975) that both these applicants were professional trade mark agents which implies holding themselves out to or inviting proprietors 30 of trade marks to employ their services as such; that this being the position it seems that the status of the proprietors employing their services is more akin to a client than to a principal and that the proprietors of the trade marks they sought to have registered were no less their clients than a person who instructs 35 an advocate to do the work isto the advocate; that in this respect the filing by them of the applications for registration of trade marks amounted to practising as advocates; and that, therefore, it was open to the respondent to refuse the applications as he did. 40
(3)That what is protected under Article 26.1 of the Constitu152 3 C.L.R. 5 10 15 20 25 30 35 SABA & Another v. Republic tion is the right to enter into a legal contract and not the rights created by an agreement resulting from the exercise of such right (see Chimonidesv. Manglis
(1967)1C.L.R. 125); that, assuming that the provisions of the Advocates Law, 1975, preclude the applicants from registering trade marks and patents in person and from appearing before the Registrar, it in no way affects their contractual relations with the proprietors of trade marks save that they will have to retain the services of an advocate for the above purpose; that, therefore, the provisions of the Advocates Law, 1975are not contrary to Article 26.1 of the Constitution; and that, accordingly, contention (b) must fail.
(4)(After stating the principles governing the exercise oj judicial controlof legislativeenactments on questions of theconstitutionality of a statute—vide pp. 162-63 post) that having regard to all the circumstances of this case this Court is not prepared to subscribe to the proposition that paragraph (iii) of s.2 of the Advocates (Amendment) Law, 1975 is repugnant to or inconsistent with the provisions of Article 25 of the Constitution in view of the provisions in paragraph 2 of this Article that the right to practise any profession or to carry on any occupation, trade or business which is guaranteed by paragraph 1 "may be subject to such formalities, conditions or restrictions as arc prescribed by law and relate exclusively to the qualifications usually required for the exercise of any profession ": and that, therefore, contention (c) must fail.
(5)That, as to Article 28.1, it is well established that the principle of equality safeguards only against arbitrary differentiations and does not exclude reasonable distinctions; that in this case the distinction made between an advocate and a layman cannot, in all the circumstances, reasonably be said to be an arbitrary differentiation; and that, accordingly, contention (d) must, also, fail. Application dismissed. Cases referred to: Kutner v. Phillips [1891] 2 Q.B. 267; Flannagan v. Shaw [1920] 3 K.B. 96; In re Chance [1936] Ch. 266; 40 Chimonides v. Manglis
(1967)1 C.L.R. 125; Boardfor Registration of Architects and Civil Engineersv. Kyriahides
(1966)3 C.L.R. 640 at pp. 654-655. 153 SABA &Another v.Republic
(1980)Recourse. Recourse against the refusal of the respondent Registrar of Trade Marks to accept for registration two trade marks. A. Dikigoropoulos, for the applicants. R. Gavrielides,Counsel of the Republic, for the tespondent. 5 Cur. adv. vult. L. Loizou J. read the following judgment. This recourse on behalf of the two applicants is against the decision of the Registrar of Trade Marks refusing to accept for registration two trade marks on the ground that the authorizations of the 10 applicants as agents which accompanied the applications for registration did not nominate an advocate, allegedly contrary to section 2(l)(iii) of the Advocates Law (Cap. 2 and Laws 42/61, 20/63 and 46/70) as amended by Law 40 of
  1. The facts of the case are not in dispute and are briefly these: 15 Applicant 1 is a partnership registered in Cyprus which exercises the profession of Trade Mark and Patent Agents. They are controlled by a firm based in Lebanon and carrying on the samebusinessin many countries. Applicant 2wasemployed by applicant 1 in 1962and asfrom July, 1967,hewasappointed 20 as the Manager of applicant's 1, Nicosia office. Throughout this period he has also exercised the profession of Trade Mark and Patent Agent and in this capacity he appeared before the Registrar of Trade Marks as well as before the Assistant Registrar for the discussion of objections raised by the office 25 of the Registrar for the registration of trade marks. On the 27th August, 1975, applicant 1 acting on behalf of the proprietors of the trade mark "Motorcraft" submitted to the Registrar an application (exhibit 1) for the registration of the said trade mark in Cyprus accompanied by the authorization 30 by the proprietors (exhibit 2). On the 2nd September, 1975,under cover of the letter exhibit 3, the Registrar returned both the application and authorization on the ground that it contravened the provisions of s. 2(l)(iii) of the Advocates Lawas set out in s.2 of theAdvocates (Amend- 35 ment) Law of 1975 (Law 40 of 1975). On the same day applicant 2 submitted to the Registrar on behalf of the proprietors of the trade mark "Pickwick" an application for the registration of the trade mark in Cyprus accompanied by the authorization by the proprietors and on the 2nd 40 154 3 CX.R. SABA & Another τ. Republic L. Loizou J. September, 1975, the Registrar returned both the application and authorization on the same grounds as in the case of applicant
  2. The application, the authorization and the Registrar's letter are exhibits 4, 5 and 6 respectively. 5 As a result this recourse was filed by the two applicants praying for a declaration that the decision of the Registrar contained in the letters exhibits 3 and 6 forwarded to the applicants respectively is null andvoid and of noeffect as having been made and/or taken contrary to the provisions of the Law 10 and of the Constitution and/or in excess and abuse of respondent's powers. The Application is based on the following alternative grounds of law. 15 20 25
  3. That respondent's acts and/or decisions complained of are based on the wrong assumption that s. 60 of the Trade Marks Law, Cap. 268 and rule 14 of the Trade Mark Rules 1951-1971 by virtue of which applications for registration of trade marks may be made on behalf of the proprietor of a trade mark by a duly authorized agent were repealed in consequence of the amendment of the Advocates Law, Cap.2, by s. 2 of Law 40 of 1975 and/or
  4. That the decisions complained of and/or the definition of "practising as an advocate" as set out in paragraph (iii) of s. 2 of the Advocates (Amendment) Law, 1975,

Article 26

.1 of the Constitution in that they nullify the applicants' right of entering freely into a contract of agents and/or any other contract between themselves and the owners of trade marks. 30 3. That respondent's decisions complained of and/or the definition of "practising as an advocate" as set out in paragraph (iii) of s. 2 of the Advocates (Amendment) Law, 1975

Article 25of the Constitution.

35 4. That the decisions complained of and/or the definition of "practising as an advocate" as set out in the same law

Article 28of the Consti­ tution in that they discriminate against the applicants in favour of advocates. 155 L. Loizoa J. SABA & Another v. Republic

(1980)The definition of "practising as an advocate" (άσκεϊν τ ή υ δικηγορίαν) as amended by the 1975 Law reads as follows: 1 " 'άσκεϊν την δικηγορίαν" σημαίνει— (
  1. i)(
  2. ii)_ 5 (iii) την εκ μέρους πελάτου ένέργειαν έγγραφης εμπορικών σημάτων ή διπλωμάτωνευρεσιτεχνίας καΐ τήν έιιφάνισιν ενώπιον οίασδήποτε διοικητική; αρχής δια TOOS προειρημένους σκοπούς· „ _. χ " 'practising as an advocate' means— (0 (") (iii) the registration of trade marks or patents on behalf 15 of a client and theappearance before any administrative authority for the aforesaid purposes; Γ S. 60 of the Trade Marks Law, Cap. 268 reads: 20 "Where by this Law any act has to be done by or to any person in connection with a trade mark or proposed trade mark or any procedure relating thereto, the act may under and in accordance with the rules or in particular cases by special leave of the Court, be done by or to an agent of that 25 person duly authorized in the prescribed manner." Rule 14 of the Trade Mark Rules 1951-1971 is in these terms: "14. Except as otherwise required by these rules, any application, request or notice which is required or permitted by the Law or these rules to be made or given to the 30 Registrar, and all other communications between an applicant or a person making such a request or giving such a notice and the Registrar, and between the registered proprietor or a registered user of a trade mark and the Registrar or any other person, may be signed, made or 35 given by or through an agent. Any such applicant, person making request or giving 156 10 3 CX.R. 5 10 15 20 25 SABA & Another τ. Republic L. Lolzon J. notice, proprietor, or registered user may appoint an agent to act for him inany proceeding or matterbefore or affecting the Registrar under the Law and these rules by signing and sending to the Registrar an authority to that effect in the Form T.M.-No. 1, or in such other written form as the Registrar may deem sufficient. In case of such appoint­ ment, service upon the agent of any document relating to thepioceeding or matter shall be deemed to be service upon the person so appointing him, all communications directed to be made to such person in respect of the proceeding or mattei may be addressed to such agent, and all attendances upon the Registrar relating thereto may be made by or through such agent. In any particular case the Registrar may require the personal signature or presence of an applicant, opponent, proprietor, registered user or other person. The Registrar shall not be bound to recognize as such agent any person who has been proved to him,or, on appeal, to the Court, to have been guilty of conduct discreditable to a trade mark agent or vyho has been convicted criminally or whose name has been struck off the Roll of Advocates, and notsince restored or (during theterm of his suspension) any person who has been suspended from acting as an advocate." The first question that falls for determination is whether s. 60 of the Trade Marks Law and rule 14 of the Trade Mark Rules can be said to have been impliedly repealed by the Advocates (Amendment) Law, 1975. As a general rule repeal by implication is not favoured by the Courts and if earlier and later statutes can reasonably be construed in such a way that both can be given effect to, this must be done. If however, the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together the maxim Leges 35 posteriores priores contrarias abrogant applies. But the Court should not treat an earlier enactment as impliedly repealed unless it is impossible to put any reasonable meaning on the provisions of the later without implying the repeal of the earlier. 30 (See Maxwell on Interpretation of Statutes, 12th ed., p. 191 157 L. Lolzou J. SABA &Another v. Republic
(1980)and Kutner v. Phillips[1891] 2 Q.B., 267, Flannagan v.Shaw [1920]3K.B.,96and InreChance [1936]Ch.266). In the present case the relevant legislative provisions of the TradeMarks Law, Cap.268and therulesmadethereunder have not been in terms repealed by s. 2 of the Advocates (Amend- 5 ment) Law, 1975;and the question iswhether the provisions of the latter enactment are soinconsistent with those of the former that the effect of it isthat the provisions of the former or any part thereof must be treated as having been repealed, although not expressly so stated in the latter. 10 The main force of the argument of learned counsel for the applicants on thisground wasdirectedat the difference between the relevant provisions of thetwo enactments and moreparticularly to the point that the Advocates Law deals with the relationship of advocate and client and that what it provides isthat 15 nobody can take any step on behalf of a client to register a trade mark unless he is an advocate, whereas under the Trade Marks Law the relationship envisaged is that of principal and agent and that in this particular case what the Registrar had before him was two applications by the proprietors of the trade 20 marks,filedon their behalfbytwoagentsduly authorized in the manner prescribed by the Trade Marks Law and the Trade Marks Rules. Theargument isnodoubt attractive but whether it be right or wrong depends on the true construction of s. 2 of the Advocates Lawas setout in paragraph (iii)of s. 2of the 25 Advocates (Amendment) Law,
  1. Under paragraph (iii) of s. 2 of the Advocates (Amendment) Law, 1975,the registration of trade marks or patents on behalf of aclient and the appearance before any administrative authority for the aforesaid purposes comeswithin the meaning of the 30 definition "practising as an advocate"; and under s. 11 of the Law it is prohibited for any person to practise as an advocate unless he isenrolled as such, hehas taken out an annual licence and he has paid in the Advocates' Pension Fund all sums due by him; and any person who practises as an advocate without 35 being registered or whoisnot inpossession ofanannual licence in force is guilty of an offence. It isclear from the above that under the provisions of the Advocates Law no person other than an advocate can act on behalf of a client in relation to the registration of a trade mark orpatent. Thedictionary and ordi- 40 158 3 C.L.R. SABA & Another v. Republic L. Lolzou J. nary meaning of the word 'client' is one who gets help or advice from a lawyer or any professional man. In deciding, therefore, whether this restriction regarding the registration of a trade mark or patent is applicable in any given case it isnecessary to 5 decide what the relationship of the proprietor of the trade mark and the person who acts on his behalf is. As stated earlier on the Trade Marks Law and the rules made thereunder allow registration of a trade mark by a duly authorized agent acting on behalf of the proprietor; can it then be reasonably argued 10 that an agent so acting practises as an advocate? I think that, where the true relationship is that of principal and agent, the answer must be in the negative. The word "agent" in its wider signification and in a general sense may apply to anyone who by authority performs, in a 15 representative capacity, an act for another. But in the legal sense an agent is primarily a person employed to bring about business relations between the principal and third persons. A sort of conduit pipe connecting the two other parties. Under the Trade Marks Law there is nothing to prevent the 20 proprietor of a trade mark to appear in person like any litigant in civil proceedings and do any act in relation to his trade mark and I do not think that it may reasonably be argued that he cannot authorize an agent to act for him in this respect. But this always on the assumption that the relationship between the 25 two is that of principal and agent. Having come to this conclusion and in the light of the legal provisions on the point to which I have referred I do not feel constrained tohold that the relevant sections of the Trade Marks Law and the Trade Mark Rules have been impliedly repealed 30 by the provisions of the Advocates (Amendment) Law,
  2. But the question still remains whether the applicants in this casewere,havingregard to theadmitted facts and circumstances, practising as advocates within the meaning of the words in the Advocates Law. Both these applicants were professional 35 trade mark agents which to my mind implies holding themselves out to or inviting proprietors of trade marks to employ their services as such. This being the position it seems to me that the status of the proprietors employing their services is more akin to a client than to a principal and that the proprietors of the 159 L. Loizoa J. SABA & Another τ.Republic
(1980)trade marks they sought to have registered were no less their clients than a person who instructs an advocate to do the work is to the advocate; and in this respect I am of the view that the filingby them of the applications for registration of trade marks amounted to practising as advocates and that it was open to the respondent to refuse the applications as he did. 5 I propose to deal very briefly, perhaps ex abundanti cautela in view of the conclusion that Ihave reached on thefirst ground of law, with the constitutional issues raised. Ground 2 of the grounds of law relates to Article 26.1 of the Constitution which reads as follows: 10 "26.1 Every person has the right to enter freely into any contract subject to such conditions, limitations or restric­ tions as are laid down by the general principles of the law of contract. A law shall provide for the prevention of 15 exploitation by persons who arc commanding economic power." It is to be observed that what is protected under this Article is the right to enter into a legal contract and not the rights created by an agreement resulting from theexercise of such right. See Chimonides v. Manglis
(1967)1C.L.R.
  1. 20 In the present case, assuming that the provisions of s. 2(l)(iii) of the Advocates Law, as amended, preclude the applicants from registering trade marks and patents in person and from appearing before the Registrar, it in no way affects their 25 contractual relations with the proprietors of trade marks save that they will have to retain the services of an advocate for the above purposes. The last two grounds relate to Articles 25and 28 of theConsti­ tution the relevant parts of which read as follows: 30 "
  2. I. Every person has the right to practise any profession or to carry on any occupation, trade or business.
  3. The exercise of this right may be subject to such formali­ ties, conditions or restrictions as are prescribed by law and relateexclusively tothequalifications usually required for the exercise of any profession or are necessary only in the interests of the security of the Republic or the 160 35 3 C.L.R. SABA& Another v.Republic L. Lolzou J. constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person or in the public interest: 5 Provided
  5. All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby. 10 15
  6. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this constitution. 3 4 20 25 30 35 40 "· It iscontended on the part of the applicants that the definition of thewords "practising asan advocate" iscontrary to the provisionsof Article25.1inthat the right of theapplicants to practise their profession as trade mark agents is subjected tosuch formalities, conditions or restrictions which do not relate exclusively to the qualifications usually tequired for the exercise of the profession of a trade mark agent and are not necessary for any of the grounds set out in Article 25.2 of the Constitution in that the completion of the application form and its filing with the Registrar issosimplea matter that no professional qualifications are required. This may well be so but paragraph (iii) of s. 2 of the Advocates (Amendment) Law, 1975 does not provide only for completing the application form and filing it in the Registrar's office; it also refers to the appearance before any administrative authority for the aforesaid purposes. A perusal of the Trade Marks Law and the Rules reveals that the matter is not as simple as that, especially in cases where the Registrar objects to the application for registration or where he accepts it subject to conditions and also in the case of oppositions to the registration by third parties in which instances the procedure necessary becomes much more complicated and technical. With regard to Article 28.1 learned counsel very briefly sub161 L. Loizou J. SABA &Another v. Republic
(1980)mitted that by the relevant paragraph of the Advocates (Amendment) Law, 1975 Applicants are arbitrarily excluded from the practice of their profession and advocates are given the status of a privileged class and that this is contrary to the Article in question in that it creates discrimination. 5 The principles governing the exercise of judicial control of legislative enactments on questions of the constitutionality of a statute have been considered by the Full Bench of this Court in the case of The Boardfor Registration of Architects and Civil Engineers v. Kyriakides
(1966)3 C.L.R., 640. The relevant 10 part of thejudgment is at pp. 654-655 and it reads as follows: "A rule of precautionary nature is that no act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt {Colderv. Bull, 3 Dall. 386, 399,
(1798)). Sometimes this 15 rule is expressed in another way, in the formula that an act of Congress or a State Legislature is presumed to be constitutional until proved otherwise 'beyond all reasonable doubt': see Ogden v. Saunders, 12 Wheat. 212
(1827); and other cases ending with Federation of Labor v. 20 McAdory, 325, U.S. 450
(1945); see also The AttorneyGeneral v. Ibrahim 1964 C.L.R. 195. Another maxim of constitutional interpretation is that the Courts are concerned only with the constitutionality of legislation and not with its motives, policy or wisdom, 25 or with its concurrence with natural justice, fundamental principles of government or spirit of the Constitution: see Watson v. Buck, 313 U.S. 387
(1941). As was said by Mr. Justice Roberts in Nebbia v. New York, 291 U.S. 502
(1933); 78 Law. ed. 940, at page 957, 30 'with the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the Courts are both incompetent and unauthorised to deal. The course of decision in this Court exhibits a firm adherence to these principles. Times without number we have said that the 35 legislature is primarily the Judge of the necessity of such an enactment, that every possible presumption is in favour of its validity, and that though the Court may hold views inconsistent with the wisdom of the law, it may not be • annulled unless palpably in excess of legislative power'. 40 162 3 C.L.R. SABA & Another v. Republic L. Lotzou J. It is a cardinal principle that if at all possible the Courts will construe the statute so as to bring it within the law of the Constitution: United States v. C.I.O., 335 U.S. 106
(1948); Miller v. United States, 11 Wall. 268
(1871). 5 10 15 20 25 The judicial power does not extend to the determination of abstract questions: Ashwander v. Tennessee Valley Authority 297 U.S. 288
(1935); 80 Law. ed.
  1. 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case': Burton v. United States, 196 U.S. 283, 295; 49 Law. ed. 482, 485, 25 S. Ct.
  2. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied': Liverpool, N.Y. & P.S.S. Co. v. Emigration Comrs. 113 U.S. 33; 28 Law. ed. 899, 5 S. Ct.
  3. In cases involving statutes, portions of which are valid and other portions invalid, the Courts will separate the valid from the invalid and throw out only the latter unless such portions are inextricably connected: Pollock v. Farmers' Loan and Trust Company, 158 U.S. 601, 635
(1895). With regard to the power of the State to "regulate the right to exercise a profession or carry on any trade or business it has been held that the power to impose reasonable conditions on such right includes that of excluding those who cannot meet those conditions: Gant v. Oklahoma City, 289 U.S. 98, 53S. Ct. 530; 77 Law. ed. 1058." Having regard to all the circumstances of this case I am not prepared to subscribe to the proposition that paragraph (iii) of 30 s. 2 of the Advocates (Amendment) Law, 1975 is repugnant to or inconsistent with the provisions of Article 25of the Constitution in view of the provisions in paragraph 2 of the Article that the right to practise any profession or to carry on any occupation, trade or business which is guaranteed by paragraph 1 35 "may be subject to such formalities, conditions or restrictions as are prescribed by law and relate exclusively to the qualifications usually required for the exercise of any profession ". I, therefore, have to reject learned counsel's contention with regard to this ground. 163 L. Loizou J. SABA & Another τ. Republic
(1980)Finally as to Article 28.1 it is well established that theprinciple of equality safeguards only against arbitrary differentiations and does not exclude reasonable distinctions. In the present case Ido notthink thatthedistinctionmadebetween an advocate and a layman can, in all the circumstances, reasonably be said 5 to be an arbitrary differentiation. For all the above reasons Icannot on any of the issues raised on behalf of the applicants grant the relief applied for. In the result this case is dismissed but in the circumstances I make no order as to costs. 10 Application dismissed. No order as to costs. 164

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.