clr/1987/1987_3_1911.pdf

(1987)The trialJudge annulled thesub judice decision Hencethis appeal Held, dismissing the appeal

(1)Section 60 of the Trade Marks Law, Cap 268 and Rule 14 of the Trade Marks Rules in so far as :hey refer to the appointment of an agent and hisauthorization with aviewtoapplyingfor the registration of trade marks or patents and his appearance before any administrative authority for this purpose were impliedly repealed by section 2(l)(m>ofthe Advocates Law, Cap 2 5

(2)Itfollows that compliance by theauthonsed advocate (respondent 1) in respect of stamping the authonzation with the Advocates Law was sufficient inthis case 10 Appeal dismissed No order as to costs Casesreferred to SABA and Another ν TheRepublic i\980) 3 C L R 149 Appeal. 15 Appeal against thejudgment of aJudge of the SupremeCourt of Cyprus (Lons,J.)given onthe9thSeptember, 1986 (Revisional Junsdiction Case No. 585/85)* whereby the decision of the respondent torefuse toacceptforregistration atrademarksetout in applicant'sapplication dated 13 5.1985was annulled. 20 St. Ioannides (Mrs.), for theappellants. A Dikigoropoulos, for therespondents Cur. adv. vult. A. LOIZOU J.: The judgment of the Courtwill be delivered by Mr. Justice Sawides. SAWIDES J.: - This is an appeal by the Republic of Cyprus through theRegistrar of Trade Marks,respondentinrecourse No. 585/85, against thedecisionof aJudge of thisCourtsitting inthe first instanceintheexercise ofthe originaljurisdictionofthisCourt, whereby he annulledthedecision of theRegistrar of Trade Marks 30 by which he refused toacceptfor registration atrademarksetout in theapplicant'sapplicationdated 13th May, 1985. Respondent 1 in this appeal is a practising advocate. Respondent 2 is a company of limited liability incorporated in •Reportedin

(1986)3 CL.R. 1868 1912 3 C.L.R. Republic v.Paschalldea S a w t d e aJ . Cyprus undertherelevant provisions oftheCompaniesLaw, Cap 113, as amended Both respondents were applicants in recourse No 585/

1. respondent 1 as applicant 1 and respondent 2 as applicant 2 5 Applicant 2 being desirous of having a trade mark registered in clause 16 PartΆ ' of the Register of Trade Marks,did, onthe 13th May, 1985, appoint applicant 1by authonzation in wnting, as its advocate to proceed with the aforesaid registration Applicant 1, acting in his capacity as an advocate under the aforesaid 10 authonzation of applicant 2, did complete the prescnbed under th Trade Marks Law application and submitted same together with the wntten authonzation of respondent 2 which was duly stamped in accordance with the Advocates Law. The respondent Registrar refused to accept the application and returned same to 15 applicant 1 under cover of a letter dated 27th May,
2. repeating therein his grounds for such refusal which were onginally included in his letter dated 20th May, 1985, previously addressed to applicant 1 The grounds advanced by the respondent in his aforesaid letters read as follows20 «(a)The authonzationmustbe in form Τ Μ No 1 provided by theTrade Marks Rules (Form Τ Μ No 1is enclosed) (b) Form Τ Μ No 1 must be duly stamped in accordance with theStamp Law (Videitems6 and 23 of therelevant Law 19/1963as amended by Law 29/1980) oc (c) The stamp duty must be paid in stamps and not in advocates stamps » As aresult theapplicantsfiled recourse No 585/85 challenging the aforesaid refusal of the Registrar to register the trade mark in question 30 The question of the authontyof anadvocate toacton behalf of a clientinrelation totheregistration of atrade markorpatent was, very rightly, notdisputed by theRegistrar inviewof the provisions of section 2(l)(m) of the Advocates Law, Cap. 2 (introduced by section 2 of Law 40/75 and amended by section 2 of Law 98/84) 35 and the Advocates Rules 1985 (Notification No 82/85 in Supplement No IIIof the Cyprus Gazette of 13 1985) and also the dicta inthe case oiSABA and Another ν TheRepublic

(1980)3 C L R 149 at p. 158 1913 Sawldes J. Republic v. Paachalides

(1987)TheTradeMarksLaw,Cap.268onwhichthe Registrarreliedin support of his refusal and in particular section 60, provides as follows:«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 oranyprocedurerelatingthereto,theactmayunderand in accordance with the rules or in particular cases by special leave of the Court, be done by or to an agent of that person dulyauthorized inthe prescribed manner.» 5 The «prescribed manner»provided above isprescribed byRule 10 14of theTrade MarksRules 1951 -1984 as follows:«

1. Except as otherwise required by these rules, any application, request or notice which isrequired or permitted bythe Laworthese rulestobemade orgiventothe Registrar, and all other communications between an applicant or a 15 person making such a request or givingsucha notice and the Registrar, and between the registered proprietor or a registered user of a trade mark and the Registrar or any other person,maybesigned,madeorgivenbyorthroughan agent. Any such applicant, person making request or giving 20 notice, proprietor, or registered user mayappoint anagent to act forhim inany proceedingormatterbefore oraffecting the Registrar under the Law and these rules by signing and sending tothe Registraran authoritytothateffect inthe Form T.M. -No. 1,orinsuchotherwritten form astheRegistrarmay 25 deem sufficient. In case of such appointment, service upon the agent of any document relating to the proceeding 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 matter may be 30 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. 35 The Registrarshallnotbe boundtorecognize assuch agent anyperson whohasbeen proved tohim,or,onappeal,tothe Court, to have been guiltyof conduct discreditable toa trade mark agent or who has been convicted criminally or whose 1914 3 C.L.R. Republic v.Paschalldes SawldeeJ. name hasbeen struck off the Rollof Advocatesand not since restored or (during the term of his suspension) any person whohasbeen suspended from actingasan advocate.» It has been the submission of counsel for the appellant before 5 thetrialCourtandatthehearingofthisappealthatthe appropriate form ofauthorization ofaperson toactonbehalf ofanotherforthe registration of a trade mark should be in the form T.M. No. 1 prescribed by Rule 14 hereinabove and bearing in mind the fact that such authorization is in the nature of a power of attorney, it 10 should be duly stamped according to sections 6 and 23 and the definition of «power of attorney» under the provisions of the Stamp Law, 1963 (LawNo. 19/63). 15 20 25 30 3c 40 Counsel expounded his argument and sought to rely on the above provisions in support of his grounds of appeal which were the following:«The trial Judge erroneously held that s. 60 of the Trade Marks Law, Cap. 268and Rule 14 of the Trade Marks Rules 1951 -1971 havebeen impliedlyrepealed bys.2(l)(iii) ofthe AdvocatesLaw,Cap.2(insertedbys.2ofLawNo.40of 1975 ar >d amended by s. 2 of Law 98 of 1984) and the Advocates Rules 1985 in so far as the Trade Marks Law and the Trade Marks Rules refer to the appointment of an agent and his authorization 'in the prescribed manner' with a view to applying fortheregistration oftrademarksorpatentsand the appearance before any administrative authority for the aforesaid purpose.
2. The trialJudge erroneously held that s. 60 of the Trade Marks Law, Cap. 268 and Rule 14 of the Trade Marks Rules 1951-1971, in so far as they refer to the appointment of an agent and his authorization with a view to applying for the registration of trade marks or patents and his appearance before any administrative authority for this purpose, are so inconsistent and repugnant to the provisions of 'practising as an advocate' set out in s. 2 of Law No. 40 of 1975, as amended by LawNo.94of 1984thatthetwoenactments are incapable ofstanding together.
3. The trialJudge erroneously held that once aperson ora firm cannot appoint an agent with a view to acting on his behalf in relation to the registration of the person's or firm's trade mark or patent, but he has to appoint an advocate, itis 1915 S a w i d e a J. Republic v.Paschalldes

(1987)only reasonable to expect that such authorization should not be in theform envisaged byRule 14oftheTradeMarksRules for anagent,butintheformenvisagedbytheAdvocatesRules for the authorization of an advocate, such form being regulated byrule 18ofthe Advocates Rules,

1. 5
2. The trialJudge failed tomake afinding astowhether the relevant provisions of the Stamp Law of 1963 as amended have also been impliedly repealed. Alternatively assuming that the trial Judge did make such a finding by necessary implication such finding iswrong.» 10 Counsel for the respondents on the other hand submitted that the provisions referring to authorization of an agent to apply for registration of a trade mark or a patent and the requirement for stamping such authorization is repugnant to the Advocates Law and cannot apply in the present case. Any provisions requiring 15 such authorization, counsel submitted, have been repealed by implication asveryrightlyfound bythetrialJudge whose decision should be affirmed. The construction of the relevant sections in the Trade Marks Lawand theAdvocatesLaw,hereinabove referred to,cameupfor 20 consideration before this Court for the first time in the case of SABA and Another (supra) inwhich L. Loizou, J. concluded that section 60 of the Trade Marks Law, Cap.268 and Rule 14 of the Trade MarksRules, 1951 -1971, havebeen impliedlyrepealed by theAdvocates (Amendment) Law, 1975.Weread thefollowing in 25 the aforesaid judgment atpp. 158-159:«Under paragraph (iii) of s. 2 of the Advocates (Amendment) Law, 1975, the registration of trade marks or patents on behalf of a client and the appearance before any administrative authority for the aforesaid purposes comes .30 within the meaning of the definition 'practising as an advocate'; and unders. 11ofthe Lawitisprohibited for any person to practice as an advocate unless he is enrolled as such,hehastakenoutanannuallicenceandhehaspaidinthe Advocates' Pension Fund all sums due by him; and any 35 personwhopracticesasanadvocatewithoutbeingregistered or who is not in possession of an annual licence in force is guilty of an offence. Itisclearfrom theabove thatunderthe provisions of the Advocates Law no person other than an 1916 3 C.L.R. 5 10 15 20 25 3Q Republic v.PaachaUdea S a w i d e · J. advocate can act on behalf of a client in relation to the registration of a trade mark or patent. The dictionary and ordinary meaning of the word 'client' isone whogetshelp or advice from a lawyer or any professional man. In deciding, therefore, whether thisrestriction regardingthe registrationof a trade mark or patent is applicable in any given case it is necessary todecide what the relationship of theproprietorof the trade mark and the person who acts on hisbehalf is.As stated earlier on the Trade Marks Law and the rules made thereunder allow registration of a trade mark by a duly authorized agentactingonbehalf oftheproprietor; canitthen be reasonably argued that an agent so acting practices as an advocate? Ithink that, where the true relationship is that of principal and agent, the answer must be in the negative. The word 'agent' in itswider signification and in a general sense may apply to anyone who by authority performs, in a representative capacity, an act for another. But in the legal sense an agentisprimarily aperson employed tobring about business relationsbetween the principal and third persons.A sort ofconduitpipe connecting the two other parties. Under the Trade MarksLawthere isnothingtoprevent the proprietor ofatrade marktoappear inperson likeanylitigant incivilproceedingsand doanyactinrelationtohistrademark and Ido 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 two isthat ofprincipal and agent. Havingcometothisconclusion and inthelightofthe legal provisions on the point to which I have referred Ido not feel constrained to hold that the relevant sections of the Trade Marks Law and the Trade Marks Rules have been impliedly repealed by the provisions of the Advocates (Amendment) Law, 1975» The learned trial Judge in the present case after he had dealt 35 with the relevant provisionsfound as follows:« I feel that I should go further and say that section 60 of the Trade MarksLaw, Cap.268 and Rule 14of the Trade Marks Rules 1951-1971 have been impliedly repealed by section 2(l)(iii) of the Advocates Law, Cap. 1917 SawtdesJ. Republic v. Paachalldea

(1987)2 (inserted by section 2 of Law 40/75and amended by s 2of Law 98/84)andtheAdvocates Rules 1985 (vide Κ.Δ.Π 821/ 8^ Μ1 3 85), inso far as theTrade MarksLaw and theTrade Mark Rules refer to the appointment of an agent and his authonzation 'in the prescnbed manner' with a view to 5 applying for theregistration ofTradeMarksorpatentsandthe appearance before any administrative authonty for the aforesaid purpose As a general rule the Courts do not favour repeal of an enactment by implication unless the onginal enactment is 10 so inconsistent or repugnant to the latter, so that the two enactments are incapable of standing together (vide Halsburys Law of England 4th ed Vol 44, para 966 Herodotouv TheRepubhc{ 1985)3C L R 1768atp 1778» and concluded as follows Inthecase underconsideration I hold theviewthats 60of the Trade Marks Law, Cap 268 and Rule 14 of the Trade Marks Rules 1951 - 1971, in so far as they refer to the appointment of an agent and his authonzationwith aview to applying for the registration of trade marks or patentsand his 20 appearance before any administrative authonty for this purpose, are so inconsistent and repugant totheprovisions of 'practising as an advocate set out in s 2 of Law 40/75 as amended by Law 98/84 that the two enactments are incapable of standing together, therefore in this respect the 25 maxim 'Leges postenores contraries abrogant' applies andin consequence under the provisions of the Advocates Law Law 40/75 as amended -no person other than an advocate can act on behalf of a client inrelation tothe registration of a trade mark orpatent (vide SABA case -supra) 30 Now, onceaperson ora firm cannotappointanagent with a view to acting on his behalf in relation tothe registration of that person's or firm's trade mark or patent, but he has to appoint an advocate, itis only reasonable toexpect thatsuch authonzation should notbe inthe form envisaged by Rule 14 35 of the Trade Marks Rules for an agent, but tn the form envisaged by the Advocates Rules for the authonzationof an advocate and such form is regulated by Rule 18 of the Advocates Rules 1985 (Κ.Δ.Π.82/85of 1.3.85) Furthermore Rule 19 of the Advocates Rules provides for the stamping of 40 1918 3C.L.R. Republicv.Paachalldea Sawtdes J. such an authorization to an advocate in 'advocates stamps' and not inordinary stamps.» Wesharetheviewexpressed both inSABA case(supra)and the learnedtrialJudge inthepresentcase,thatsection60oftheTrade 5 MarksLaw. Cap.268and Rule 14of theTrade MarksRules inso far as they refer to the appointment of an agent and his authorization with a viewto applying for the registration of Trade Marks or patents and his appearance before any administrative authority for this purpose were impliedly repealed by section 10 2(l)(iii)oftheAdvocates Law.Cap.2,and thatcompliancebythe advocate concerningstamping of the authorization in accordance with the Advocates Lawwassufficient inthiscase. In the result this appeal fails and is hereby dismissed with no costs. 15 Appeal dismissed. No orderas to costs. 1919