3 CUR. 1987February20 (TRIANTAFYLLIDES Ρ SAWIDES LOWS STYLIANIDES KOYRRIS JJ ] W H I T E HORSE DISTILLERS LIMITED, Appellants (Interested Party) ν EL G R E C O DISTILLERS L T D . Respondents (Applicants), υ 1 T H E MINISTRY OF C O M M E R C E A N D INDUSTRY, 2 T H E REGISTRAR OF TRADE MARKS Respondents (Revisional Junsdictton Appeal No 505) TradeMarks — Registration of— Judicial control — Principles applicable 5 10 The Assistant Registrar of Trade Marks found that the words EL CABALLITO were Spanish words meaning horse or hobbyhorse whereas the registered trade mark of the appellants consisted of the words «White Horse· or of a pictonal presentation of a white horse or of both of them together In the light of such finding the Assistant Registrar turned down the applicants' application for the registration of the words EL CABALLITO in respect of wines spirits and liqueurs that is goods of the same kind as appellants' goods,onthe followinggrounds,namely thattheapplicantsfailed to discharge the burden of establishing the non-likelihood of confusion and deception amonga substantial number of persons (section 14
(1)ofthe Trade MarksLaw, Cap 268)andthatithadnotbeenshown thattheproposedtrade mark would not offendagainst section 13 of the same law 15 The validity of the said decision was challenged by the applicants by a recourse to this Court As a result a Judge of this Court annulled the said decision Hence the present appeal by the interestedpartiestntherecourse, ι e the owners ofthe trade mark «White Horse» 531 White Horse v. El Greco
(1987)Held, allowingthe appeal
(1)ThisCourt,asanadministrativeCourt, does not interfere with an administrative decision regarding the registrability of a trade mark, if such decision was reasonably open to the Registrar of Trade Marksanddoes notsubstituteitsown evaluation tothatof theRegistrar
(2)In this case the decision of the Registrar, acting through the Assistant Registrar, was reasonably open to him and it was not necessary for himto embark onany further inquiryas toothermeaningsof ELCABALLITOorto giveany otherreasons insupportof hisdecision 5 Appeal allowed Noorder 10 asto costs Casesreferredto Merck ν TheRepublic
(1972)3 CLR 548, Seven-up Company ν TheRepublic
(1973)3 C LR 612 Curzon Tobacco Co Ltd ν TheRepublic
(1975)3 C L R 363 andon appeal
(1979)3CLR 151, 15 Beecham Group Ltd ν TheRepublic {1982) 3 CLR 622 Ρ Μ and G Stavnmdes ClothingIndustriesLtd ν TheRepublic
(1983)3 C LR 98, EffemsAG ν TheRepublic
(1985)3 C LR 793, PepsiCo Inc ν TheRepublic
(1985)3 CLR 1092, 20 RsonsLtd ν TheRegistrarof TradeMarks
(1985)3 C LR 2318, Roc International ν TheRepublic
(1984)3 C LR 219, BeiersdofA G ν TheRepublic (Tobe reportedin
(1987)3 C L R Davidoff Commercio e Industna Limitada ν The Republic
(1986)3 C LR 2232 25 Appeal. Appeal byinterestedpartyagainstthejudgmentofaJudgeofthe Supreme Court of Cyprus (Pikis,J )given on the 1st June, 1985 (Revisional JunsdictionCase No 7/84)* whereby the decisionof the respondents to expunge from class 33 in Register A of Trade Ϊ0 Marksthe trademark «ElCaballito»was annulled 'Reportedin
(1985)3CLR 1189 532 3 C.L.R. White Hone v. El Greco G.Nicolaides,fortheappellants -interested parties. M.Christophides,for the respondents -applicants. St. hannidou (Mrs.), forthe respondents. Cur.adv. vult. 5 TRIANTAFYLLIDES P., read the following judgment of the Court. The appellants were an interested party inrecourse 7/84 which was filed under Article 146 of the Constitution by the respondents-applicants (hereinafter to be referred as «the applicants»). 10 By means of such recourse the applicants had challenged the refusal oftherespondent RegistrarofTradeMarks-actingthrough the Assistant Registrar ofTrade Marks-toregister the trade mark oftheapplicants«ELCABALLITO»inrespectofwines,spiritsand liqueurs. 15 The application for the registration of the said trade mark was dulyadvertised inthe Official Gazette of the Republic. Eventuallysuchapplication wasopposed bytheappellants and after a hearing before him the Assistant Registrar of Trade Marks (to be referred to hereinafter as «the Assistant Registrar») found 20 thattheapplicantshadnotdischargedtheonusofestablishingthe non-likelihood of confusion and deception among a substantial number of persons if the aforesaid trade mark of the applicants was registered in respect of the goods referred to by them since there was already registered the trade mark of the appellants in 25 respect of goods ofthesame kind. Itwas, consequently, found that the opposition under section 14
(1)of the Trade Marks Law, Cap. 268, succeeded and, furthermore, thatithad notbeen shown bytheapplicantsthatthe use of the proposed trade mark would not offend against the 30 provisionsofsection 13ofCap.268.Asaresulttheapplicationof the applicants for the registration of the aforementioned trade markwasnot granted. Against this decision of the Assistant Registrar the applicants filedrecourse7/84inwhichjudgmentwasgivenbythetrialJudge 35 annullingthedecisionoftheAssistantRegistraronthegroundthat hehad notconducted anadequate inquiryandthatthe reasoning givenbyhimwas incomplete. 533 TrtantafyUldes P. White Horse v. El Greco
(1987)Against suchjudgment the appellants, asan interested partyin the proceedings, since they had opposed the registration of the trade mark, filed the present appeal. Itisthewellestablished approach ofourSupremeCourt,on the basis of the principles governing the exercise of itsjurisdiction as 5 an administrative Court in the first instance and on appeal, thatit does not interfere with an administrative decision regarding the registrability ofatrade mark ifsuch decision wasreasonably open to the Registrar of Trade Marks and does not substitute its own evaluation intheplaceofthatoftheRegistrar(see,interalia,inthis 10 resDect.Merckv.TheRepublic,
(1972)3C.L.R. 548,564, SevenUpCompany v. The Republic,
(1973)3C.L.R. 612,621, Curzon Tobacco Co.Ltd. v. TheRepublic,
(1975)3C.L.R. 363,369.and on appeal
(1979)3 C.L.R. 151,158,Beecham GroupLtd. v. The Republic,
(1982)3 C.L.R. 622, 632, P.M. & G. Stavrinides 15 ClothingIndustriesLtd. v. TheRepublic,
(1983)3C.L.R. 98,107, EffemsA. G.v. TheRepublic,
(1985)3C.L.R. 793,798, PepsiCo. Inc. v. The Republic,
(1985)3C.L.R. 1092,1102 and FisonsLtd. v. TheRegistrarof TradeMarks,
(1985)3 C.L.R. 2318,2327). It is to be noted, too, that in Roc International S.A. v. The 20 Republic,
(1984)3 C.L.R. 219, 225, it was held that it was not open to the Registrar of Trade Marks to reach his sub judice in thoseproceedings decision ashehad notcarried outadue inquiry as to the meaning and the understanding bythe ordinary people of Cyprus of the word whichwas intended on that occasion tobe 25 registered as a trade mark; and see, also, the not reported yet cases of Beiersdof A.G. v. The Republic (case 361/84)* and Davidoff Commercio e. IndustriaLimitada v. TheRepublic (Case 517/84).** In the present instance the Assistant Registrar found that the 30 words «EL CABALLITO» were Spanish words and that their ordinary meaning is a small horse or hobbyhorse, whereas the trademarkoftheappellantsconsisted ofthewords«WhiteHorse» or of a pictorial presentation of a white horse or of both of them together. Itwascontended bytheapplicantsbefore theRegistrarthatthe • Tobereportedin
(1987)3C.L.R. •'Reportedin
(1986)3C.L.R. 2232. 534 35 3 C.L.R. White Horse v. El Greco TrlentafyUldes P. words «EL CABALLITO» meant only a sea-horse but the proposed trade mark of the applicants did not comprise also a pictorialpresentation of asea-horse soastoavoidconfusion with the «White-Horse»trade markof the appellants. 5 Weare,therefore, oftheopinionthatitwasreasonablyopen to the respondent Registrar -actingthrough theAssistantRegistrarto refuse the applied for registration of the trade mark of the applicantsandthat itwasnotnecessaryforhimtoembarkon any further enquiry as to other meanings of the words «EL 10 CABALLITO»,ortogiveanyotherorfurther reasonsinsupportof hisdecision. This appeal, therefore, succeeds; but, in the circumstances of thiscase,weshallmake noorderastoitscosts. Appeal allowed. No orderasto costs. 15 535