The Gazette 1978

Registration "Arby's" - Intention to use mark - Whether any genuine intention existing at date of application — Part A, class 29 — Intention proved in High Court on appeal from Con- troller - (1976 No. 333 Sp - Hamilton J. - 3/2/78). Arby's Inc. v. Controller of Parents etc. Registration "Dent" - Surname - Class 14, clocks and watches - Whether proposed mark adapted to distinguish or capable of distinguishing — Refusal by Controller to register either in Part A or in Part B of register - Decision of Controller upheld in High Court - Trade Marks Act, 1963, ss. 17, 18 - (1978 No. 217 Sp. - McWilliam J. - 10/10/78). A. Dent A Co. Ltd., Controller of Patents. Registration Device - Crocodile - Class 25 - Clothing including shoes — Not adapted to distinguish or capable of distinguishing — Device likely to deceive - Trade Marks Act, 1963, ss. 17-19 - (163/76 - Supreme Court - 27/1/78). Chemise Lacoste v. Controller of Patents. Registration "Master Charge" - Bank credit card - Mark intended to be placed on credit cards - No intention of applicant to use cards in course of trade - Mark not registrable - Semble: applicant's interest in pending application not assignable - Trade Marks Act, 1963, ss. 2, 17. - (1975 No. 126 Sp - Parke J. - 1/3/78). Western States Bank Card v. Controller of Patents. TRADE UNION Resolutions Notice - Introduction of maximum age for dockers - Union wishing to obtain a decision of members approving retirement at 65 years with pension rights - Scheme affecting plaintiff's continued employment — Plaintiff unaware that subject would be raised and decided at meeting of Union members - Decision invalid - (1976 No. 5632P - Finlay P. - 15/3/78). Rodgers v. Irish Transport A General Workers Union. TRIBUNAL Natural justice Impartiality - Compulsory acquisition of land - Provisional list of lands to be acquired - List based on certificate of two lay com- missioners - Objection of landowner - Appeal to two other lay commissioners — Disagreement between the two appeal com- missioners — Proposal to relist appeal before the two original appeal commissioners and the commissioner who signed the grounding certificate - Proposed addition of third commissioner no breach of natural justice — Prohibition refused - (1977 No. 477 SS - Doyle J. - 12/6/78). The State (Curran) v. Irish Land Commission. TRUSTS Creation Court - Discretionary trust - Allocation of part of testator's estate for benefit of his children - Allocation to be held on discretionary trusts — Successtion Act, 1965, s. 117 - (1977 No. 346 Sp - Costello J. - 27/7/78). L. v. Bank of Ireland. Creation Voluntary grant - Mother to son-in-law —

Presumption of resulting trust - Evidence rebutting presumption - House bought by mother and vested in daughter and son-in-law jointly - Moiety vested in son-in-law - (1977 No. 500 Sp - Finlay P. - 25/7/78). Belopopsky v. Belopopsky. Creation Will - Bequest - "It is my wish ..." - Precatory trust - No binding legal obligation - (1977 No. 122 Sp - McWilliam J. - 25/4/78). Porter v, Fay. Lands Gifts —Alienation inter vivos — Evidence establishing donor's intention to give land to donee without payment - Donee not refusing gift but leaving land shortly after date of con- veyance — Subsequent gift of money by donor to donee for purpose of acquiring house elsewhere —Donor devising land to third party - Donee declared trustee of land for benefit of estate of donor - (1976 No. 5236P - McWilliam J. - 14/3/78). Kiernan v. O'Flynn. WILL Construction Bequest - Gift to four persons nominatim and "in the event of their death" to their children — "Death" construed as death in life- time of testator - Condition that three legatees do not claim their shares during life- time of fourth legatee - Fourth legatee to have life estate with remainder to four legatees - (1977 No. 122 Sp - McWilliam J. - 25/4/78). Porter v. Fay. Construction Extrinsic evidence — Phrase in dispute hav- ing clear meaning - Extrinsic evidence avail- able to raise doubt as to intention of testator in using phrase — Extrinsic evidence not admissible - Succession Act, 1965, s. 90 — (162/75 - Supreme Court - 20/1/78). Rowe v. Law. Construction Legacy - Initial bequest of pecuniary legacy followed by devise and bequest of all property to tenant for life with remainder to named beneficiaries - Dispositions then followed by disputed pecuniary legacy to plaintiff - Payment of plaintiffs legacy not postponed to death of tenant for life - (1976 No. 547 Sp - Costello J. - 22/7/78). Taaffe v. Taaffe. Testator Moral duty - Testator's children - Children deprived - Handicapped child - Breach of duty by testator - Part of estate allocated by court to children - Court directing that allocation be held on discretionary trusts for benefit of children - Succession Act, 1965, s. 117 - (1977 No. 346 Sp - Costello J. - 27/7/78). L. v. Bank of Ireland. Testator Moral duty - Testatrix leaving three sons - Two sons having onerous family responsibilities - Third son having lived with testatrix in family home and having helped to maintain it - Third son due to retire soon and having no other residence - Small pecuniary legacy bequeathed to each of married sons — Residue of estate bequeathed to cancer research - Failure in moral duty - Life interest in family home to third son with remainder to his two brothers - (1978 No. 250 Sp - Costello J. - 8/11/78). McGarry v. Byrne.

STATUTE - continued

Interpretation Office holder - Statutory powers - Expiration of office - Whether power* «till exercisable - Chairman of Dafl Eireann after dissolution of Dail - Electoral Act, 1963, s. 13 - (19/78 - Supreme Court - 11/5/78). Loftus v. The Attorney General. Interpretation Repeal - Unlawful gaming - Definition of unlawful gaming including reference to s. 10 of Act - Repeal of s. 10 - Effect of repeal on definition - Promotion of unlawful gaming — (1978 No. 35 SS - Costello J. - 10/3/78). DFJ*. (Broderick) v. Flanagan. Interpretation "United Kingdom" - Adaption of enact- ments - Refers to Great Britain and Republic of Ireland - Adaptation of Enactments Act, 1923, s. 3 - Larceny Act, 1916, s. 33 - (150/77 - Supreme Court - 27/1/78). The State (Gllsenan) v. McMorrow. Statutory Duty Breach - Failure to fence burial ground — Trespassing cattle poisoned by defendant's yew tree - Defendant's statutory obligation not imposed for benefit of adjoining landowner - No cause of action -(1976 No. 2535P - Gannon J. - 23/1/78). Walsh v. Kilkenny County Council. SUCCESSION Testator Moral Duty - Breach - Part of estate allocated by court to children — Allocation to be held on discretionary trusts for benefit of children - Succession Act, 1965, s. 177 - (1977 No. 346 Sp - Costello J. - 27/7/78). Facts - Assessment - Trial by judge with- out jury - Judge's finding of fact based on choice between conflicting oral testimony of witnesses—Distinctionbetween'flndings offset by trial judge and inferences of fact drawn by him from facts proved or admitted — (204/77 - Supreme Court - 21/7/78). Northern Bank Finance v. Charlton. Appeal Stare decisis - Earlier decision of Supreme Court decided per incuriam — Decision not a binding authority — Principle of stare decisis not involved in departure from earlier decision - (205/77 - Supreme Court - 14/11/78). The State (Harkin) v. O'Malley. Removal from register — Whether any bona fide use of mark — Use resumed by proprietor shortly before defendant's application for removal of mark — Resumed user held to be bonafide - Claim for removal dismissed - (1977 No. 4662P - McWilliam J. - 1/6/78). Beecham Group Ltd. v. GoodaUs Ltd. "Trex" - Cooking fats - Plaintiff's registered mark - Defendant using "Pastrex" for cooking fats - Likelihood of deception and confusion - Plaintiff's mark infringed - (1977 No. 5715P - McWilliam J. - 3/7/78). Industrie Buitoni Perugiana v. O'Mahoney Ltd. L. v. Bank of Ireland. SUPREME COURT Appeal TRADE MARK Disuse * * ' - - -•* imimcmiiii

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