3 C.L.R. 1987 December 3 [DEMETR1ADES J ] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION MILLERBREWINGCOMPANY, Applicants, ν THE REGISTRAROFTRADEMARKS, Respondent (CaseNo 37/84) 5 10 Administrative Law — Due inquiry — Application for registration of trademark — Attention of respondent focussedon word *Mtllen>—Failure on his behalf to consider the mark asa whole or to consider possibility of disclaimer of said word — Ground of annulment — Arguments of counsel — Cannot supplement the missing reasoning or complete otherwise incomplete administrative records The respondent rejected an application for the registration of a m k consisting, inter alia, of the word«Miller»,on thefollowinggrounds, name that the word «Miller» is a geographical name and a surname and lack distinctiveness It must be noted that at the heanng before the respondent applicants' counsel offeredto disclaim theword «Miller» 15 20 Held annulling thesubjudicedecision (l)Therespondentmainlydirected his mind on the word «Miller»and it does notappear anywhere whether he actually considered the mark as a whole or with a disclaimer of the word «Miller.
(2)The argument of counsel for the respondent that evenafter disclaimer the mark continued to be non distinctive cannot be accepted, because arguments of counsel cannot supplement either the missing reasoning or incompleteadministrative records Subjudice decision annulled No order asto costs Recourse. Recourse against the decision of the respondent whereby he 1829 Miller Brewing C o . v.Reg.ofTrade Marks
(1987)rejected applicants' application for the registration of the trade mark Miller with a label in class32 of the Register of Trade Marks inrespect of beer. G.Nicolaides, for the applicants. St. hannides (Mrs.), for the respondent. 5 Cur.adv. vult. DEMETRIADES J. read the following judgment. By this recourse the applicants challenge the decision of the respondent which was communicated to them by his letter dated the 23rd November, 1983,and by which he rejected their application No. 10 23165 for the registration of the trade mark Miller with a label,in class32 of the Register ofTrade Marks, in respect of beer. The applicants, a company registered in Wisconcin, U.S.A., applied on the5th November, 1982,forthe registration ofamark consisting of the word «Miller»and beneath thatthewords«HIGH 15 LIFE»and «TheChampagne of Beers»,allenclosed inabig frame. Under the big frame there appears another small frame with the word «Miller» in small letters, and again all parts are enclosed in another biggerframe withtheword «Miller»scattered allover it,in fading print (seereds2to5inthefile,which isexhibitNo. 1 before 20 me). The respondent, having considered the application, informed the applicants' advocate that the proposed mark could not be accepted for registration,on thegroundsthatitwasa geographical name and asurname, andthatitlackeddistinctiveness,contraryto 25 the provisions of section 11(l)(d)and (e)ofTheTradeMarksLaw, Cap. 268, and, in addition, there was, also, an objection under section 13of the same Law (red 7 inexhibit No.1). Theapplicants' advocate requested ahearing,whichtook place on the 27th October, 1983. What was stated at the hearing, 30 according tothe minute kept for it(red 15)isthe following: «Mr. Nicolaides: Iam willing to disclaim the word Millerif you accept the restoftheMark». By letter dated the 23rd November, 1983, the respondent informed the applicants' counsel that he could not waive his 35 original objections, which were affirmed by the said letter. The 1830 3 C.L.R. Miller Brewing Co. v. Reg. of Trade Marks Demetriadea J. applicants' counsel requested a reasoned decision, which was communicated to him by letter dated the 14th January, 1984 As a result, theapplicants filed the present recourse Counsel for the applicants argued that the respondent acted under a misconception of law and/or fact inasmuch as he considered only theregistrability of theword «Miller» andfailed to consider registrability of the mark as a whole, or its possible registration with a disclaimer of the word «Miller». He further argued that the respondent failed to consider registration under 10 Part Β of the Register and that the mark did not lack distinctiveness anditwas registrable unaersection 13ofthe Law. 5 Counsel for the respondent argued thatregistration of the word «Miller» was prohibited by the provisions of section 11
(1)of the Law, as being a geographical nameand acommonsurname,and 15 registration of the mark would have been possible only upon proof of itsdistinctive character,which theapplicants failed todo She further argued that the mark was considered as a whole but was not found to be distinctive and, also, that registration under section 13was considered butwas notfound possible because the 20 prominent feature of the mark which was the word «Miller» was likelytocause confusion She,also,contendedthatregistration or the mark with a disclaimer is always considered as a matter c. practice, as isalso registration inPartΒ of the Register Iagree with the submission of counsel for the respondentth« 25 the reasoned judgment of the Registrar should be read togethc r with his onginal decision, which was communicated to the applicants' advocate by letterdated the23rd November, 1983 In fact the actual decision is to be found in red 15 (in exhibit No 1) which contains the minute of the heanng of the case before the 30 Registrar, held on the 27th October, 1983 Right below the said minute,which ishandwntten,thefollowing appears (alsoinhandwnting) «Objections still stand» Thisnotebears thedateof 4thNovember, 1983 Whatwerethe objections of the Registrar which were still standing after the 35 heanng appear in red 7 in thefile and have already been stated From what itseems, however, therespondent mainly directed his mind on the word «Miller» and it does not appear anywhere whether he actually considered the mark as a whole or with a disclaimer of theword «Miller». 1831 Demetriadea«1. MillerBrewingCo.v.Reg.ofTradeMarks
(1987)Counsel for the respondent explained that the mark continued to be non distinctive even after the disclaimer. The views and explanations of counsel cannot, however, be considered as affording the missingreasoningofanadministrativedecisionoras supplementing incomplete records of it. There isno mention inthereasoned decision oranywhere else of the question of consideration by the respondent of the disclaimer oftheword «Miller»andthisCourtcannot read intothe subjudice decision thingswhich do notappear there. Itismyview, from the material before me,that the respondent 10 oughttodeal,atleastinhisreasoned decision,withthedisclaimer, oncesuch matterwasspecifically raisedatthehearingbefore him, and explain howand whyhecontinued tohaveobjections inspite ofthe disclaimer, ifsuch wasthe case.On the contrary, the whole of his reasoned judgment refers to his objections on the 15 registrability of the disclaimed word, as if the question of its disclaimer wasnever raised. Inthecircumstances, Ifindthatthesubjudicedecisionhastobe annulled on this ground. Inthe result,thisrecoursesucceeds andthesubjudicedecision 20 ishereby annulled with costsinfavour of the applicants. Sub judice decisionannulled withcostsin favour of applicants. 1832 5