clr/1989/1989_3A_930.pdf

(1989)19S9AugustΙΟ [SAVVIDES.J] INTHE MATTER OF ARTICLE 146OF THE CONSTITUTION ROI.LS-ROYCE MOTORS LTD. Applicants, v. THE REPUBLIC OF CYPRUS.THROUGH THE REGISTRAR OF TRADE MARKS, Respondent. (CoseNo 4S9/SS) Trademarks — Registration — ThePans Convention tor theProtectionof IndustrialProperty as icvised in Lisbon

(1958)andStockholm

(1967). ratifiedby Laws 63/65and66/83. Art 6.Qumquics.(D)

(2)— Refusal ol registration ol Trademark bused onsection II(l)(

1. e)at the Trademarks Law, Cap 26S on ground ol lackol distinctiveness— At it coincide·, $ with the saidsub-paragraph ot Ail 6 of the Convention, theie wasno needtor theRegistrar to c\dmmc theapplicationundertheConvcntion as well. Trademarks — Registration — The Trademarks law. Cap 268,section JO Il(l)(
2. e)andsection 12— Registrationinaforeigncountry — Weight — it is ot no consequentialsigmlicance Trddemarki — Rcgistrdtion — Use in Cyprus— A tact thatmay betaken into consideration, but u isnot b\ itscll the criterion which mav weigh 15 thescalesint:i\our otregistration. Judicialcontrol — RegistrabilityotTiadcmdrk — Interferenceby Court — Principles applicable — The Court does not intcrlcre il the decision complained ot wasreasonablyopen to therespondent The applicants applied for registration in class 12ot part A olthe 930 20 3 C.L.R. Rolls-Royce Motors Ltd v. Republic Register of Trademarks of their Trademark consisting of a Radiator Grille (device), which had been registered in the country of origin, namely U.K., since 1975 in respect of motor vehicles, their engines chassis and other parts. There was one sale of a Rolls Royce car identified by the aforesaid Trademark. Finally, theRegistrar rejected the application for the registration on ground of lack of distinctiveness. He based his decision on sections 1l(l)(c)and 12of theTrademarks Law. Cap.26S. 10 15 The applicants complained that the Registrar failed to apply the aforesaid Convention. It should, however, be noted that the matter of the Convention had not been raised before the Registrar. During the hearing before the Registrar applicants' Counsel added that the initials R.R.are not pan of the mark. In the light of the principles enunciated in the hereinabove Hcadnotcs the Court dismissed the recourse. 20 Recourse dismissed. i\o order as to costs. Coses referred to: 25 PloughInc. v.Republic

(1985)3 C.L.R. I6S7, Maison Prunicr v.Pninicr's Restaurant andCafeInc.etc. [1936]2S8. Ε Merck v.RepublicΛ Another

(1972)3 C.L.R.54S. 30- - - - - PloughInc. v.Republic(19SS)3 C.L.R.145. Curzon TobaccoCo. Lid. v.Republic

(1975)3 C.L.R.363, 35 Curzon Tobacco Co. Ltd. v.Republic

(1979)3 C.L.R.151, Stavhnides Clothing v.Republic

(1983)3C.L.R.98, 40 PelcticoNaiionale Ltd. v.Registrar of TradeMarks

(1986)of3 C.L.R. 490.

(1987)3 Socicic Elf Acquiiaine v. Registrar Trade Marks C.L.R.1420. 931 Rolls-Royce Motors Ltd v. Republic

(1989)Blue Bell Inc. v.Registrarof Trade Marks (I9S7) 3 C.L.R.

1. American Telephone and Telegraph Company v. Registrar of Trade Marks (I9S7) 3 C.L.R.
2. 5 White Horse DistillersLtd. v. El GrecoDistillers Ltd. and Others (19S7) 3 C.L.R.
3. Needle-Tip Trade Mark [I973JR.P.C.
4. 10 Recourse. Recourse against the refusal of the respondent to register applicants" trade mark as shown in their application datedSth October, 1986 in class 12of pan '"A" of theRegister of Trade 15 Marks. A. Dikigoropouios. for the Applicants. L.Koursoumbii (Mrs). Counsel of theRepublic Β'. for the 20 Respondent. Cur. adv. vult. SAVVIDES. J. read thefollowing judgment. The applicants 25 by the present recourse seek a declaration that the actand/or decision of the respondent Registrar of Trade Marks to refuse to register applicants' trademark asshown intheirapplication datedSthOctober. 19S6,inclass 12of pan Ά ' of the Register of Trade Marks,communicatedtoapplicants under cover of a 30 letter dated22nd March. 1988.isnull andvoidandof no effect whatsoever as being made and/or taken contrary to the provisions of the law and/or of the constitution and in excess and/or abuse of the powers vested in the Registrar of Trade Marks. 35 In the letter, exhibit
5. dated 22nd March, 19SS. the reasoned decision of therespondent isattached. Thefacts relevant tothecase are as follows: Applicants are a company of limited liability incorporated 932 40 3 C.L.R. 5 Rolls-Royce Motors Ltd v. Republic Savvides, J. in the U.K. under the relevant provisions of the Companies Law, trading in motorvehicles, their engines,chassis andother pans thereof. They are the registered owners of Trade Mark No.1034118 (R.R. Radiator Grille (Device))in their country of origin, the U.K.,since
6. Applicants' aforesaid trade mark has been registered also in various other countries including countries of theCommonwealth. By an application dated the 8th October, 1986, applicants 10 requested the registration of their aforesaid mark in class 12of Pan Ά ' of the Registrar in respect of the goods referred to therein.Theapplication having been considered for acceptance was on the 18th October, 19S6, objected to under s.l l(l)(e) of Cap. 268 (as amended) on the ground that the mark 15 · propoundedfor registration was notdistinctive andalso onthe groundthatthesaid mark was contrary totheprovisions of s.13 of Cap.26S (asamended). 20 25 30 35 40 On 2nd June, 1987, a considered reply was filed with the Registrar's office accompanied by an affidavit sworn by the Secretary of the applicants to which there was attached a schedule setting out the countries of the Commonwealth and other foreign countriesinwhich thetrademark in question was registered and also the countries in which applications for registration were pending. Also a record of goods sold in Cyprus displaying the trade mark in question, which in fact consisted of onesaleof aRolls-Royce caridentified by the'RR. Radiator Grille',in December 1982 at the value of £40,000.As theobjections taken by theRegistrar couldnotbewaived the applicants were informed by the respondent that under Regulation 32 of theTrade Marks Regulations 1951-1984 they could seek a hearing if they wanted to pursue the application further and in consequence a hearing was fixed on the 8th December,
7. At the hearing the Registrar heard the arguments put forward by the applicants and considered the evidence adduced. A copy of registration of the mark in the U.K. was filed at the said hearing. Taking into account and weighing all legal and factual aspects of the case the Registrar held on the 7th March, 1988, that the mark/device propounded for registration was neither 933 Savvides, J. Rolls-Royce Motors Ltd v. Republic

(1989)adapted to nor capable of distinguishing the applicants' goods andtheapplication was,therefore, refused unders.l9

(2)ofthe Trade Marks Law, Cap.268 (as amended) because the mark/device failed to satisfy the requirements of s.l 1 ands.12 of therelevant law. 5 In his judgment the respondent Registrar dealt extensively both with the factual andlegal aspect of the case on whichhe relied in reaching his decision. By letter dated 22nd March, 1988,thereasoneddecisionoftheRegistrarwascommunicated 10 to applicants' counsel. Learnedcounselforapplicantsinhiselaborateaddress,after making extensive reference to the relevant provisions in the law and the Case Law on the matter as well as to the corresponding provisions under the English Law and the principles emanating therefrom asexpounded in Kerly's Law onTrade MarksandTradeNames,submitted that thedecision of the respondent Registrar complained of was taken upon a misconception of both thelawandthefacts of thecaseinthat hefailed to study andif necessary interpret the law applicable to the issue before him, ascertain the relevant facts including the extent of applicants' useof themark inCyprus andapply the correct law to the facts. Also that he misdirected himself upon the true meaning of s.l 1and s.12 of Cap.268 and was wrong in law and/or in fact in concluding that applicants' application in respect of their said trade mark fell under the aforesaid statutory provisions. The second leg of counsel for applicants' argument was 30 based on International Conventions ratified in Cyprus andin particulartheParisConvention fortheProtection of Industrial Property as revised in Stockholm in 1967 and submitted that the respondedmisdirectedhimself upon thelawapplicableand that he confined his inquiry into the statutory provisions of 35 Cap.268 only ignoring completely the relevant provisions of LawsNos.63/65 and66/83wherebytheprovisionsoftheParis Convention fortheProtection ofIndustrialPropertyasrevised at Stockholm in 1967,were enacted as part of the law of the Republic of Cyprus and which by reason of the provisions of 40 Article 169.3oftheConstitution haveasfrom theirpublication in the Official Gazette of the Republic superior force to the 934 .15 20 25 3 C.L.R. Rolls-Royce Motors Ltd v. Republic Savvides, J. provisions of Cap.268. 5 Learnedcounsel further addedthattherespondent Registrar failed to evaluate properly the relevant statutory provisions and did not appreciate that applicants can obtain a Cyprus Trade Mark registration under the provisions of the Convention without alleging use of their trademark in Cyprus because applicants have aU.K.registration of theirtrademark. 10 Before dealing with the arguments of learned counsel for the respondent I wish to mention that the provisions of the Convention were not raised or argued before the Registrar at the hearing of thecase before him. 15 Counsel who appeared for applicants at the hearing, according to the record in the relevant file before me,said the following: 20 "

(1)Theapplicant companyhas usedthesaid trademark the subject of this application continuously for many years in respect of thegoods applied for registration. Thesalesofthe said goods in Cyprus under the trade mark RR. Radiator Grilled(Device)areshown ontheexhibit Ά* attachedtothe affidavit already filed sworn bv Mr.JohnSmith. 25

(2)Thecompanyhas registered thetrademark RR. Radiator Grille (Device) in the U.K. under No.1034118 and others after filing evidence of its distinctiveness through use in the U.K. 30

(3)Thecompanyhasregistered thetrademark RR. Radiator Grille (Device) in countries of the Commonwealth having a similar Trade Mark Law and procedure as in Cyprus. 35 40 The affidavit sworn by John Smith, Secretary of the applicants referred to was filed with you on let June,

1. We are enclosing a photocopy of the certificate of registration in the U.K. as requested in your letter of November 6,
2. For all the above reasons we submit that the mark is 935 Savvides, J. Rolls-Royce Motors Ltd v. Republic

(1989)sufficiently distinctive for registration in Pan A of the Register." Then therecordgoes as follows: 5 "Assistant Registrar of Trade Marks: I note that on the representation of themark thereare no 'RR'letters. Mr. Xenophontos: That is so. As you will see iromthe Trade Marks Journal advertisement of the mark as well as 10 from the registration certificate the mark was registered in U.K. without the said letters. The device per se was registered, AssistantRegistrar of TradeMarks: Decision reserved.*' 15 Learned counsel for the respondent in her written address submitted that the decision complained of was properly and lawfully taken by the respondent in the proper exercise of his power and discretion under the relevant legislation having 20 taken into consideration all relevant facts and circumstances andthatthedecision complainedof is duly reasoned. In the exercise of his powers, counsel contended, the Registrar correctly found that the mark propounded for 25 registration was not distinctive which was aprerequisiteunder s.l 1(l)(e)of theTradeMarks Law,Cap.268. In the decision making process, counsel argued, the Registrarfirst consideredwhetherthemarkcouldbeacceptable 30 for registration eitherinpan Ά* unders.11 orinpart 'B !under s.12 andhaving found thatthemark was not registrable under either part of the Register, as it did not satisfy the test of "distinctiveness" required by either of the said sections, he deemed it necessary to consider s.l3 as s.l3 contains certain 35 specific prohibitions upon registrations; it was her submission thatif itisfound thatamarkisdistinctive i.e.topass thetestof s.l 1and/ors.12 theRegistrar then hastoconsider s.l3 or s.14 to ensure that the provisions of these sections also are not violated. 40 Learned counsel then proceeded to expound on the 936 3C.L.R. Rolls-Royce Motors Ltd v.Republic Savvides,J. applicability of sections 11 and 12, in the light of the corresponding provisions of sections 9 and 10 of the English Trade Marks Act of 1938 which are identical to our law and concludedthat theRegistrarin applyingthe relevant principles 5 asemanating from ourCase LawandtheEnglish CaseLaw.on the facts and evidence before him, correctly found that the, device/mark propounded for registration was (a) neither inherently adapted to distinguish nor inherently capable of distinguishing; nor (b) by reason of its use or in any other 10 circumstances in fact adapted to distinguish nor capable of distinguishing. Counsel further argued that the onus of proof wasupon the applicants to adducethenecessary andappropriate evidencein 15 ordertoestablish distinctiveness oftheirmark unders.11 which in thecircumstances of thecase they failed to do. As to the application of the Paris Convention for the Protection of Industrial Property counsel submitted that the 20 extent of its applicability has been considered by our Supreme Court in anumber of caseswhich make extensive reference to its provisions and in particular Plough Inc. v. The Republic

(1985)3 C.L.R.1687, 1691-1692. She submitted on this point that inthe present casetheground upon which theRegistrarof 25 Trade Marks refused registration of the mark in question, namely,lack of distinctiveness coincides with the provisionsof Article 6quinquies of theConvention andthereservationslaid down in paragraph 'B 1 thereof and there is no conflict in this respect between ourlawandthe Convention. 30 Inconcluding herwritten addresslearnedcounsel submitted · that theRegistrar properly directedhimself onthelawandtook the subjudice decision inthe proper exercise of his power and discretion under the law having taken into consideration all 35 relevant matters placedbefore himby the applicants and came to a decision that wasreasonably open to him. Learnedcounselfor applicantsinhiswritten addressinreply made further clarifications to his legal grounds and submitted 40 that the decisions cited by counsel for respondent as to the International Convention inquestion donotgointothemerits of such Convention and/or can be distinguished. He went 937 Savvides, J. Rolls-Royce Motors Ltd v.Republic

(1989)further to submit that ifno distinction can bemadetheywere wronglydecided for thefollowing reasons: (

1. a)Ifthe lawto be applied were the provisions of Cap.268 why was the International Convention for the 5 Protection of Industrial Property enacted twice by the HouseofRepresentatives oftheRepublicofCyprus? (b)SinceunderArticle 169.3oftheConstitution Laws Nos. 63/65 and 66/S3 are superior laws to the Trade Marks 10 Law, Cap.268, the provisions of Cap.268 must recede before theprovisionsofthe International Convention. (
2. c)In the U.S.A. where similar constitutional provisions placetheInternationalConvention abovethelocallaws, 15 decisions of Courts confirm theview that atrade mark registered in the country of origin of the applicant is entitled to protection in the Courts and administrative authorities of the country where an application for registration ismade. 20 InthisrespecthemadereferencetoadecisionoftheDistrict CourtoftheSouthern Districtof Floridaandsubmittedthatby analogytheapplicants areentitledtoatrademark registration of theirU.K.registration whichistheircountryoforigin. Any 25 other interpretation, counsel submitted, of the International Convention ispatently contrary to theobligations undertaken bytheRepublicunderLawsNos.63/65and66/83andcontrary to the interests of the Republic. He made reference in this respect toadecision oftheSupremeCourtofNewYork inthe 30 case of Maison Prunier v.Prunier's Restaurant and Cafe Inc.etc.[1936]288N.Y.S.-529, 159Misc.551. Before embarkingontherefusal oftherespondent basedon sections 11 and 12 of Cap.268 I shall deal briefly with his 35 objection in his original refusal for registration of the trade mark in question based ons.13 aswell. Thegroundsofhisobjectionwerethatthemarkpropounded for registration lackeddistinctiveness unders.ll(l)(
3. e)andalso 40 that it was objectionable under s.13. In his final decision however, after the hearing, thegrounds on which he reliedin 938 3 C.L.R. Rolls-Royce Motors Ltd v.Republic Savvides, J. refusing the registration were solely s.ll(l)(
4. e)and s.12 of Cap.26S and not s.l3 to which no reference is made in his decision, obviously having abandoned his original objection basedthereon. 5 Whatisbeingchallengedbythepresentrecourseisthefinal decision of the Registrar of 22nd March, 1988, in which, as alreadymentioned,noreferenceismadetos.13andnoreliance wasplacedbyhim ofs.13 in reachinghisdecision. Therefore, 10 any argument advanced in connection with s.13 though of academicinterest,hasnorelevancetothepresentcaseinwhich itsprovisionsareneithermentionednorrelieduponinthesub judice decision.Therefore, once s.13 isnot directly in issue I find it unnecessary to deal with its applicability in thepresent 15 case. Before proceedingtothemerits of thesubjudicedecisionI shallfirst dealwiththecontention ofcounselforapplicantsthat the respondent failed to consider and give due weight to the 20 Paris Convention for theProtection of Industrial Property,as subsequently revised, which is part of our domestic law by virtueofratification and,therefore,hefailedtocarryout adue inquiry. 25 The Paris Convention for the Protection of Industrial PropertyasrevisedinLisbon

(1958)andStockholm

(1967)was ratified and became part of our domestic legislation by the Convention for the Protection of Industrial Property (Ratification) Laws 63 of 1965 and 66 of 1983. It is clearly 30 providedbyour Constitution underArticle 169.3thattreaties, conventions andagreementsconcludedin accordancewiththe provisionsofparagraphs 1 and2ofthesaidArticleareasfrom their publication in the official Gazette of the Republic of superior force to any domestic law on condition that such 35 treaties,conventions andagreements are appliedbythe other partythereto. Thequestionofreciprocityinthiscaseisnotinissueasfrom what emanates from Kerly's Law onTrade Marks andTrade 40 Names, 11thed.p.665,n.7,theUnited Kingdom isa party to the Convention to which reference hasbeen madebylearned counselfor theapplicant. 939 Savvides,J. Rolls-Royce Motors Ltd v. Republic

(1989)Extensive reference to the provisions of the Convention and its applicability has been madeby this Courtin anumber of cases, suffices it to refer to E. Merck v. The Republic

(1972)3C.L.R.548 andPlough Inc. v.The Republic

(1988)3 C.L.R. 145; therefore. I find it unnecessary to go into its provisions indetail. I wish onlytostate thatIadoptwhat was said by theFullBenchinPlough inc.(supra)inthisrespect. I shall onlybriefly dealwithcertainprovisions inthe Convention which arematerial for thepurposes of the presentcase. 10 Article 6,Quinquies,of theConventionreads asfollows: "A B. Trade marks under the present Article may not be 15 denied registration or cancelled except in the following cases:

(1)When they are of such a nature as to infringe rights acquiredby thirdparties inthecountrywhere protection 20 isclaimed.

(2)When they have no distinctive character,or consist exclusively of signs or indications which may serve in a trade to designate the kind, quality, quantity, intended 25 purpose, value, place of origin of the goods or time of production, or which have become customary in the current language or in the bona fide and established practicesof thetradeinthecountrywhereaprotection is sought. 30

(3)" Section 11of theTrade Marks Law,Cap.268reads: "11.

(1)In orderthatatrademarktoberegistrable in Part Aoftheregister, itmaycontainorconsist of atleastone of thefollowing essential particulars: (

1. a)35 40 Φ) (c).-, 940 3 C.L.R. 5 Rolls-Royce Motors Ltd v. Republic Savvides, J. (
2. d)(
3. e)anyotherdistinctivemark,but aname,signature,or word or words, other than such as fall within the descriptions in the foregoing paragraphs (a), (b),(
4. c)and (d).shall not be registrable under the provisions of this paragraph except upon evidence of its distinctiveness." A comparison of Article 6 Quinquies of the Convention 10 with s.ll of the Trade Marks Law and its effect upon such provisions has been made by A. Loizou, J. (as he then was)in thecase of E. Merck (supra) at pp.561,562 as follows: 15 20 "It appears from acomparison of theaforesaid texts that the requirements under sections 11and 13of the Trade. Marks Lawtotheextentthat they havebeen invokedby the Registrar in arriving at the sub judice decision and which are similar to the corresponding provisions of the Trade Marks Law obtaining in England, are not in conflict with the reservations in Article 6 quinquies paragraph B.of the Convention. Aspointed out inKerly's Law ofTrade MarksandTrade Names.9th Edition, paragraph 964,p.510- 25 30 35 40 'Article 6 quinquies states that every trade mark duly registered in its country of origin shall be admitted for deposit and protected in its original form in the other countries of the Union, subject to certain reservations. These reservations refer to marks,which infringe the rights of third parties, marks which have no distinctive character and marks which are contrary to morality or public order.' Andthen itsays: '....the requisites for registration provided under sections 9, 10, 11,and 12 of the Trade Marks Act, 1938, will in nearly allcasescoincidewiththeprovisionsof article 6of the Convention.' Theconditionsfor filing aregistration oftrademarksare left 941 Savvides, J. Rolls-Royce Motors Ltd v. Republic

(1989)to the domestic law by Article 6.1 of the Convention, and such a law isvalid to theextent that it does not offend the provisions ofthe Convention. Inthepresent case,thegroundsuponwhichareRegistrarof 5 Trade Marks refused registration of the trade mark in question,coincidewiththeprovisionsofArticle6quinquies of the Convention and the reservations laid down in paragraph B.thereof. There being no conflict between the law and the Convention in this respect, thisground of law 10 must fail." The above opinion was adopted by the Full Bench in Plough Inc.(supra). 15 Inthepresent casetherefusal oftheRegistrar wasbasedon s.l l(l)(

1. e)inthat themark inquestion lackeddistinctiveness,a matter which brings the case under the exceptions of the application of the Convention under para.B.2 of Article 6, Quinquies,ofthe Convention. Learnedcounsel for applicants advanced variousreasonsin support of his argument that a distinction should be drawn between the present case and the above cases or, in the alternative,find that thesaidcaseswerewrongly decided. 25 Ifindmyself unabletoacceptthiscontention. Theextentof the applicability of the Convention has been expressly pronounced in the aforesaid casesfrom which I an boundand asaresult IfindthatoncetheRegistrar reachedhisconclusion, 30 as mentioned above, it wasnot necessary for himto examine whether theConvention couldhaveanybearinginthecase. The question, therefore, which remains for consideration is whethertherespondentrightlyreachedtheconclusion that the 35 trademark in question lackeddistinctiveness. The question of distinctiveness under s.ll(l)(
2. e)and registrability of a mark under s.12 as well as the principles underliningthemhavebeenconsideredinanumberofcasesof 40 this Court in which the English Law on the matter has been reviewedandIneednotrepeatthem.(See,interalia,E.Merck 942 20 3 C.L.R. Rolls-Royce Motors Ltd v. Republic Savvides, J. v. The Republic (supra); Curzon Tobacco Co. Ltd. v. The Republic

(1975)3 C.L.R. 363.and on appeal

(1979)3 C.L.R. 151; Stavhnides Clothing v. The Republic (19S3) 3 C.L.R. 98; Peletico Ltd. v. Registrar of Trade Marks

(1986)3 5 C.L.R. 490; Societe Rationale Elf Acquitaine v. The Registrar of Trade Marks

(1987)3 CL.R.1420; Blue Bell Inc. v. The Registrar of Trade Marks

(1987)3 C.L.R. 542; American Telephone and Telegraph Company v. The Registrar of Trade Marks

(1987)3 C.L.R. 1966; White 10 Horse Distillers Ltd. v.ElGreco Distillers Ltd. and Others

(1987)3C.L.R. 531; Plough Inc. v.TheRepublic (supra)). The question of registration of a mark in a foreign country on whichcounsel for applicant soughtto relyandthebearingof 15 such registration in proceedings for registration in Cypnis as well as whether the mark iscapable of distinguishing the goods covered by such mark in this country have been considered in the cases of Societe Rationale Elf Acquitaine (supra) and American Telephone and Telegraph Company (supra) in 20 which reference ismadeinthisrespect totheEnglishCaseLaw and to Kerly's Law on Trade Marks and Trade Names, 12th ed., where the principle was adopted that foreign registrations are of no consequential significance. The opinion expressed in the said cases was adopted in Plough Inc. (supra) in which 25 reference ismade also to the following extract in Kerly's Law onTrade Marks andTrade Names, 12thed.,at p.l23,para.S-67 which reads as follows: "Use of registration abroad: 30 On an application to register a mark for use in the United Kingdom, its distinctiveness in the United Kingdom is in question. Thus extent of registration and use of the mark abroad are of secondary significance, if any." 35 Useful reference may be made in this respect to the following extract from the decision in Needle-Tip Trade Mark [1973] R.P.C. 113 at p.118 in which the provisions emanating therefrom were adopted in Plough Inc.(supra): 40 "It seems to me that the mere fact that a mark has been registered in a foreign country has little or no bearing on 943 Savvides, J. Rolls-Royce Motors Ltd v.Republic

(1989)whether the mark is capable of distinguishing the goods of the applicant in this country. Registration in the foreign country will have been allowed according to the law and practice in that country which may differ from that of this country and may have been allowed in thelight of particular 5 circumstances and trading conditions in that country and which may be very different to those obtaining in this country-. It may be that,ina casewhere a mark applied for here has already been registered in a foreign country with a system of trade mark law similar to our own, if a written 10 decision of the foreign tribunal allowing registration in the foreign country and which showed the grounds of the decision andthematters taken intoconsideration weretobe adduced on the application here, it might be persuasive asa piece of reasoning as to whether the mark should be 15 registered here, if, but only if, similar considerations applied in this country; but that, it seems to me is as far as registration in a foreign country could be relevant to registrability here. It is to be noted that in Swifts' case the Divisional Court was influenced by what was referred to as 20 'ascholarly andpersuasivejudgment ofthe FullCourt of the High Court of Australia'. On the present appeal, however. all that has been relied upon isthe mere fact of registration in the countries mentioned and that mere fact, as I have already stated, isof little ornobearing on whether themark 25 is capable of distinguishing the applicants' goods in this country." Finally Ishallbriefly dealwiththequestion asto whetherthe Registrar paid due cognizance to the question of the use of the 30 trademark inquestion inCyprus.The affidavit oftheSecretary of the applicants in which particulars are given of one sale effected in Cyprus in 1982 ofa motor-vehicle with thegrillein question, waspart of thematerial whichtheRegistrar took into consideration in reaching his decision. As held in Plough Inc. 35 (supra) "though it is a matter which may be taken into consideration by the Registrar in reaching his decision it is not by itself the criterion which may weigh the scales in favour of the registration of the trade mark. However, undue weight cannotbegiventosuchelementtooverweightherequirements 40 under s.11for distinctiveness of the mark in question." 944 3 C.L.R. Rolls-Royce Motors Ltd v. Republic Savvides,'J. The approach of our Supreme Court as to when the Court should interfere with an administrative decision regarding the registrability of a trade mark as having been reviewed by the Full Bench in Revisional Appeal No.505 White Horse 5 Distillers (supra) and reiterated in the decision of the Full Bench inPlough Inc.(supra)isthat the SupremeCourt on the basis of the principles governing the exercise of its jurisdiction as an administrative Court in the first instance and on appeal doesnot interfere withanadministrative decision regardingthe 10 registrability of a trade mark if such decision was reasonably open tothe RegistrarotTrade Marks andit doesnot substitute its own evaluation in the place of that of the Registrar. In the present case on the material before me and having 15 carefully considered the elaborate decision of the respondent Registrar of Trade Marks and the reasons given by him for refusing the registration of the trade mark in question I have come to the conclusion that it was reasonably open to him to decide ashe did. 20 Therefore, the recourse fails and ishereby dismissed and the sub judice decision isatfirmed. I make no order for costs. 25 Recourse dismissed. No orderlis tocosts. 945