The Gazette 1980

GAZETTE

JULY-AUGUST

1980

aforesaid by him, except by leave of the Court".

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Griffin J. contrasted the provisions of Section 25(7) of the Act of 1963 with Section 26 which provides for the situation in which there is opposition to registration, and in which Section 26(9) provides that: "On the hearing of an appeal under Section 57 of this Act against a decision of the Controller under this Section any party may, either in the manner prescribed or by special leave of the Court, bring forward further material for the consideration of the Court". Held: (per Kenny J. with concurring judgments from Griffin and Parke, JJ.): that the words "except by leave of the Court" applied only to the grounds of objection taken by the Controller. The High Court had no power to allow any further materials to be introduced after the Controller had stated his decision; it is an appellate Court when dealing with appeals from the Controller and not a Court of first instance. The affidavit by Mr. Smaltz on behalf of the applicant should not have been admitted or considered by the trial judge for he had not power to do so; and without that affidavit there was no evidence that the applicant had used or intended to use the trade mark in the State. Per Parke J. (in a concurring judgment): "The onus of establishing the monopoly which is conferred by the registration of a trade mark clearly lies on the applicant at all stages. If he fails to discharge this onus at the hearing before the Controller (for which the applicant himself has applied) he should not be allowed to mend his hand on the appeal by producing evidence or other material which the Controller had no opportunity of considering. The Act vests in the Controller, in the first instance, the right and duty to decide whether a proposed mark should be registered. It is only when his decision is unfavourable to the applicant that an appeal lies to the Court. If the applicant could produce evidence or material at that stage the proceedings would no longer be an appeal, but a trial at first instance in which the Court would be substituting its own judgment for that of the Controller". Note: At the end of his judgment Kenny J. stated: "It is lamentable that an application lodged in 1972 should not be disposed of by the Controller until 1976. It is equally lamentable that this appeal came before us in 1979 when the Controller had stated his reasons in 1976. These great delays are a feature of most trade mark applications and do considerable harm to the commercial reputation of this country". In the matter of the Trade Marks Act, 1963. Arby's Limited (Applicant). Supreme Court, (per Kenny J. with concurring judgments from Griffin and Parke JJ.) April, 1979 - unreported.

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