(1986)1086 September 9 [LORIS. J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
- ANTONIS PASCHALIDES.
- ASTERIAS CO. LTD., A pplicants, v. THE REGISTRAR O F TRADE MARKS, Respondent. (Case No. 585/85). Trade Marks—Appointment of an agent for registration of— Form of authorisation—Section 60 of the Trade Marks Law, Cap. 268 and rule J4 of the Trade Marks Rules, I95I-I97I—Impliedly repealed in so far as they relate to the appointment of an agent and his authorisation for 5 applying for registration of a trade mark or patent and his appearance before any administrative authority by sec tion 2
(1)(Hi) (inserted by Law 40/75 as amended by Law 98/84) of the Advocates Law, Cap. 2—Consequently no person other than an advocate can be appointed to act 10 as agent in respect of the matters aforesaid—The form of authorisation is not the one provided by rule 14 of the said rules, but the one provided in rule 18 of the Advo cates' Rules—Moreover, the form should be stamped in advo cates' stamps (Rule 19 of the Advocates Rules). 15 Construction of Statutes—Repeal by implication—Principles ap plicable—The maxim "leges posteriores contrarias ahrogant". The respondent refused to accept an application for the registration of trade mark, which had been submitted by applicant 1 a practising advocate, on behalf of his clients, applicants 2, on the following grounds, namely that the authorisation must be in form Ε.Σ. Ap. 1 provided 1868 20 3 C.L.R. Paschalides v. Registrar of Trade Marks by the Trade Marks Rules, that such form must be duly stamped in accordance with the Stamp Duty Law and that the stamp duty must be paid in stamps and not in advocates' stamps. 5 10 15 20 25 As a result the applicants filed the present recourse. Held, annulling the sub judice decision:
(1)Section 60 of the Trade Marks Law, Cap. 268 and rule 14 of the Trade Marks Rules, 1951-1971, in so far as they relate to the appointment of an agent and his authorisation with a view to applying for the registration of trade marks or patents and his appearance before an administrative authority for this purpose, are so inconsistent and repugnant to the provisions of "practising as an advocate" set out in section 2
(1)(III) of the Advocates Law, Cap. 2 (inserted by section 2 of Law 40/75 as amended by s. 2 of Law 98/84), that the two enactments arc incapable of standing together. It follows that in this respect the maxim "Leges pos'eriores contrarias abrogant" applies and consequently no person other than an advocate can act on behalf of a client in relation to the registration of a trade mark or patent.
(2)Once a person or a firm cannot appoint as agent for the registration of a trade mark any person other than an advocate, it is reasonable to expect that the form of authorisation should not be the form provided by rule 14 of the Trade Marks Rules, but the form envisaged by rule 18 of the Advocates Rules which should be stamped in "advocates stamps" as provided by rule 19 of the Advocates Rules. 30 Sub jiuiice decision annulled. No orders as to costs. Cages referred to: SABA and Another v. The Republic
(1980)3 C.L.R. 149: Herodotou v. The Republic
(1985)3 C.L.R.
- 35 Recourse. Recourse against the refusal of the respondent to accept 1869 Paschalides v. Registrar of Tralio Marks reg;stration of trade mark JUSTICE in Part A Register of Trade Marks. {1986} of the A. Dikigoropoulos, for the applicants. St. Joanm'des (Mrs.), for the respondents. Cur. adv. viOt. Lows J. read the following judgment. Applicants by means of the present recourse impugn the decision of the respondent Registrar of Trade Marks communicated to applicant No. 1 under cover of a letter dated the 27th May, 1985, whereby the respondent refused to accept re- 10 gistration of the trade mark set out in application dated 13.5.
- The undisputed facts of the present case are very brefly as follows: Applicant No. 1 is a practising advocate. Applicant No. 2 is a company of limited liability incorporated in Cyprus under the relevant provisions of the Companies Law, Cap. 113, as amended. 15 Applicant No. 2 being desirous of having a trade mark registered in class 16, Part Ά* of the Register of Trade 20 Marks, did on 13.5.85 appoint applicant No. 1 (vide ex. 2 attached to the recourse) as its advocate to proceed with the aforesaid registration; applicant No. 1 acting in his capacity as an advocate under the aforesa:d authorisation of applicant No. 2, did complete the trade mark applica- 25 tion (vide ex. 3 attached to the recourse) and submitted same duly stamped to the respondent Registrar for regi stration. The respondent refused to accept the application (ex. 3) and returned same to applicant No. 1 under cover of a 30 letter dated 27.5.85 (ex. 1 attached to the recourse) re peating therein his grounds for such refusal which were originally included in his letter dated 20.5.85 addressed to applicant No. 1 (vide ex. 4 attached to the recourse). The grounds advanced by the respondent in his aforesaid letters addressed to applicant No. 1 read as follows': 1870 35 5 3 C.L.R. Paschalides v. Registrar of Trade Marks Loris J. "(a) The authorization must be in form Ε.Σ. Ap. 1 (Vide R. 12 attached to the opposition) prescribed by the Trade Mark Rules 5 (b) Form Ε.Σ. Ap. 1 must be duly stamped in accordance with the Stamp Duty Law (Nos 6 and 23 in Appendix Ά* of Law 19/63 as amended by Law 29/80). (c) The stamp duty must be paid in Stamps not in advocates' stamps." 10 13 20 25 and It is abundantly clear from the wording of the reasoning set out above that the grounds on which the respondent Registrar relied in refusing to accept the registration of the trade mark in question are confined only to the form of the authorisation and the stamping of same. It does not extend to the authorisation as such, a matter already clearly resolved <n the case of SABA & Another v. Re public
(1980)3 C.L.R. 149, where it was held that "...under the provisions of the Advocates Law no person otherthan an advocate can act on behalf of a client in relation to the registration of a trade mark or patent." (Vide p. 158 Lmes 3 8 - 4 0 of the report.) Fully subscribing to the above v»ew I feel that I should go further and say that s. 60 of the Trade Marks Law Cap. 268* and rule 14 of the Trake Mark Rules, 19511971** have been impliedly repealed by s. 2(l)(iii) of the * s. 60 of the Trade Marks Law, Cap 268 reads: «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 bv or to an anent of that person duly authorized in the prescribed manners. * * The relevant part of Rule 14 of the Trade Mark Rules 1951-1971 under the heading «Aqentsi reads as follows: «..Any such applicant, person making request or giving notice, pro prietor, or registered user may appoint an agent to act for him in any proceeding or matter before or affecting the Registrar under the Law and these rule's 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. ..» 1871 Loris J. Paschalides v. Registrar of Trade Marks
(1986)Advocates Law, Cap. 2 (inserted by section 2 of Law 40/75 and (amended by s. 2 of Law 98/84) and the Ad vocates Rules. 1985 (vide Κ.Δ.Π. 82/85 of 1.3.85). in so far as the Trade Marks Law and the Trade Mark Rules refer to the appointment of an ag:nt and his authorisation "in the prescribed manner" with a v'ew to applying for the registration of Trade Marks or patents and the ap pearance before any administrative authority for the afore said purpose. 5 As a general rule the Courts do not favour repeal nf an 10 enactment by implication unless the original enactment is so inconsistent or repugnant to the latter, so that the two enactments are incapable of standing together (vide Halsburys Laws of England 4th ed. Vol. 44, para. 966— Herodotou v. The Republic
(1985)3 C.L.R. 1768 at 15 p. 1778). In the case under consideration I hold the view that s. 60 of the Trade Marks Law, Cap. 268 and rule 14 of the Trade Mark Rules. 1951 - 1971. in so far as they refer to the appointment of an agent and his authorization with 20 a view to applying for the reg:straticn of trade marks or patents and his appearance before any administrative authority for this purpose, are so inconsistent and re pugnant to the provisions of "practising as an advocate" set out in s. 2 of Law 40/75 as amended by Law 98/84* 25 that the two enactments are incapable of standing together, therefore in this respect the maxim "Leges posteriores con traries abrogant" applies and in consequence "under the provisions of the Advocates Law—Law 40/75 as amended — n o person other than an advocate can act on behalf of a 30 client in relation to the registration of a trade mark or patent" (vide SABA case—supra). * The definition of «practising as an advocates inserted in the Advocates Law Cap. 2 by s. 2 of Law 40/75 which was subsequently amended bv s. 2 of Law 98/84, reads: «practising as an advocate» means— 0) (ii) (iii) the registration of trade marks or patents («on behalf of a client»—deleted—vide s. 2 of Law 98/84) and the appea rance before any administrative authority for the aforesaid purposes;» 1872 3 C.L.R. Paschalides v. Registrar of Trade Marks Loris J. Now, once a person or a firm cannot appoint an agent with a view to acting on his behalf in relation to the re gistration of that person's or firm's trade mark or patent, but he has to appoint an advocate, it is only reasonable to 5 .expect that such authorisation should not be in the form envisaged by Rule 14 of the Trade Mark Rules for an agent, but in the form envisaged by. the Advocates Rules for the authorisation of an advocate; and such form is regulated by Rule 18 of the Advocates Rules 1985 10 (Κ.Δ.Π. 82/85 of 1.3.85). Furthermore Rule 19 of the Advocates Rules provides for the stamping of such an authorisation to an advocate in "advocates* stamps" and not in ordinary stamps. For the reasons I have endeavoured to explain above 15 I hold the view that the sub judice decision of the res pondent Registrar should and it is hereby annulled. In the circumstances I have decided to make no order as to costs. 20 Sub judice decision annulled. No order as to costs. 1873