clr/1989/1989_3A_1.pdf

(1989)water— Decisionrefusingregistrationrightlyannulled. Trade Marks — Registration — Fact of registration in another country — Significance. 5 The appellant Registrar refused to register as aTrade Mark the word "Evian" for water on thegrounds that it is ageneric orgeographic name and that, in any event, the applicants, were not the owners of the relevant springs of water. 10 In fact the applicants were licensees of the springs, having the exclusive right ιο use the water of the springs in question for a period until 2027. A Judge of this court annulled thedecision |Sce (19S6) 3C.L.R 350]. \$ Hence this appeal. Held .dismissing the appeal: (i)The trial Judge was right in holding that "Evian" is neitherageneric 2 0 nor ageographical name.

(2)Proprietorship is not defined inthelaw. Each case is determinedon its merits,having regard to theprinciple that a person with a limited right of use or similar right is not a proprietor. In this case the 25 licensees who have a right to the exclusive use of the springs in question for no less a period until 2027 .arc proprietors. O) Registration in a foreign country is of no consequential significance to registration in this country. 3Q Appeal dismissed with no order as to costs. Appeals. 35 Appeals against the judgment of a judge of the Supreme Coun of Cyprus (Pikis. J.) given on the 22nd February. 1986 (Revisionai Jurisdiction Cases Nos. 127/S4 and Ϊ70/84) reponed in

(1986)3 C.L.R. 350 until 358. whereby the 40 decisions of the appelants refusing the registration of "Evian" as a trade mark in the Register of Trade Marks were annulled. -y 3 C.L.R. Republic &Another \. SOC.Anonyme D'Evian St. Ioannides (Mrs),Counsel of the Republic B. for the Appellants. C. L Clerides. for theRespondents. 5 Cur. adv.vu/r. TRIANTAFYLLIDES. P.:The Judgment of the Courtwill bedeliveredbvMr.JusticeStvlianides. 10 STYLIANIDES. J.: Appeal No. 57S was taken by the appellants-respondents againsttheJudgment ofaJudgeofthis Coun. whereby the decision of the appellant Registrar of Trade Marks, refusing the application No. 21436 of the 15 respondents for registration of "EVIAN" as a trade mark in Class32of theRegister,wasannulled. ThefactsappearlucidlyintheJudgmentofthetrialCoun{seeSocieteAnonvme v.Republic

(1986)3C.L.R.350). 20 Thethree reasons fortherefusal of theregistration are:(a)It isageneric name andassuchnot distinctive to merit registration; 25 (b)It is a geographical name and its use cannot be monopolized bytheapplicants;and 30 (c)The applicants are not the proprietors of the springsof the mineral water and. therefore, not entitled to registration. The trial Judge annulled the sub judice decision on the ground that it wasfaulty for misconception of material facts. 35 vagueness andinadequacy of reason. Themainargument fortheappellantswasthat "EViAN"is ageneric,geographical name,andthattheapplicantswerenot theproprietors. 40 We were referred to Webster's New International Dictrionary with which the Registrar dealt in his decision but -> .1 Stylianides.J. Republic & Another v.Soc.Anonyme D'Evian

(1989)we are not in accord with the Registrar as the definition of "EVIAN" water is slightly different and connotes a different meaning from theoneallegedbytheRegistrar. Weagreewith the trial Judge that it is neither generic nor a strictly geographical name and.therefore,theRegistrar waslabouring 5 under amaterial misconception of fact. Withregard to proprietorship,there isno definition inthe Law:each case must be determined on itsown merits having regard to the general principle that proprietor cannot be a 10 person with limited right ofuseorsimilar right. In the present case the applicants are licensees and they havetheexclusiverightto usethetwospringsfrom whichthis water is taken for no less a period than up to 2027, and. 15 therefore, they can be deemed proprietors in thesense ofthe Law under the circumstances of this case, as they have the exclusive right for such alongprospective period. It was strenuously argued that the Judgment under appeal 20 was influenced by acceptance of a similar application in the United Kingdom. Registration in England andindeed in anyforeign country is of no consequential significance in proceedings for 25 registration in Cyprus.It isoflittleornobearing on whether the mark iscapable of distringuishing theapplicants' goodsin thiscountry.ThetrialJudgedidnotgiveanyweightto foreign registration anddidnot misdirect himself asto thelawonthis point. He simply made an observation forguarding against a 30 future situation after 2027. What wehave said above applies alsoto Appeal No.579. We are funher in agreement with the trial Judge that the Registrar ofTrade Markshadexaminedthetwoapplications - 35 21436 and21312 -insamebreadth. For the aforesaid reasons both Appeals Nos.578 and579 areherebydismissed.Thesubjudicedecisionsofthe appellant Registrar are declared null and void and of no effect 40 whatsoever underArticle 146.4(b)ofthe Constitution. 4 3C.L.R. Republic &Another v.Soc.Anonyme D'Evian Stylianides,J. Let therebenoorder astocosts. Appeals dismissed with no orderasto costs. 5