defendant in a passing off action where the respondent offers to disclaim exporter aggrieved by the registration of a mark for the home trade THE EXERCISE OF THE JURISDICTION where the mark was incapable of registration it must be removed.. and the conduct of the applicant is immaterial Paine v. Daniells PAGE 220 220 221 221 221 221 222 222 223 223 independent title by registration and user nor, generally, delay on the part of the applicant PROVISION is made for the rectification of the register by three sections of the Act. Sect. 90 provides for cases where any person is aggrieved by the omission from, or by the entry upon, the register of any particulars without sufficient cause, and enables the Court to direct the necessary rectification to be made; sect. 91 authorizes the comptroller to correct clerical errors in the registration, and, at the request of the proprietor, to cancel the entry, or part of the entry, of a trade-mark on the register; and sect. 92 enables the Court, upon application, to permit an addition to, or alteration of, a registered mark to be made in any non-essential particular. The Act also directs that after fourteen years from its registration a mark shall be removed from the register unless the prescribed fee be paid. This provision is considered in another chapter (a). (a) Sect. 79; sce Chap. XIII., p. 291. Section 90. Decisions on the Act of 1875. "Any other particulars." 1. Rectification under Sect. 90. Sect. 90 (b) is in the following terms: "(1) The Court may, on the application of any person aggrieved by the omission without sufficient cause of the name of any person [or of any other particulars] (c) from any register kept under this Act, or by any entry made without sufficient cause in any such register, make such order for making, expunging, or varying the entry, as the Court thinks fit; or the Court may refuse the application; and in either case may make such order with respect to the costs of the proceedings as the Court thinks fit. "(2) The Court may in any proceeding under this section decide any question that it may be necessary or expedient to decide for the rectification of a register, and may direct an issue to be tried for the decision of any question of fact, and may award damages to the party aggrieved. 66 (3) Any order of the Court rectifying a register shall direct that due notice of the rectification be given to the comptroller." This section corresponds to parts of sect. 5 of the Act of 1875 (d), and is to the same effect, but is expressed in more general terms. No distinction between the construction of the two enactments appears to have been taken (e), but, on the contrary, decisions under the former are constantly cited and applied in cases falling under the present section (f). The amendment "or of any other particulars" was made upon the recommendation of Lord Herschell's Committee (g), so as to make the jurisdiction of the Court (b) Cf. Companies Act, 1862, sect. 35. (c) Act of 1888, sect. 23. (e) Except that appeals from the section, sect. 62; see Normal Co.'s Tm., 35 C. D. 231; 4 R. P. C. 123 (1886), Chitty, J., and C. A. (f) See Baker v. Rawson, 45 C. D. at p. 531; 8 R. P. C. 89, (1890), North, J. (9) Report of 1888, p. xiv. to rectify applicable to every particular which ought to be Who are persons aggrieved. The application to rectify the register must be made by All persons substantially a person who is aggrieved by the entry or omission com- inconveniplained of if it is made without sufficient cause. In recent enced if the registration judgments, the phrase in the section has been very liberally is wrong. construed, and it would be difficult to find any person engaged in the trade concerned, or any allied or connected trade, who was prevented by the qualification which it requires from moving to rectify the register. The persons who are aggrieved are, it is held, all persons who are in some way or other substantially interested in having the mark removed-where it is a question of removal-from the register, or persons who would be substantially damaged if the mark remained. It is very difficult to frame a naris Case. The question one of locus nearer definition than that (). The leading case on the subject is that of The Apollinaris The ApolliCo.'s Trade-Marks. In that case, Fry, L.J., in delivering the judgment of the Court of Appeal, said: "We approach this question (Are the applicants persons aggrieved?) on the assumption, which is necessary, of course, to answer this question, that the trade-mark was wrongly on the register; and, further, with these two observations: in the first place, that the question is merely one of locus standi; and in the second, that the words 'person aggrieved' appear to us to have been introduced into the statute to prevent the action. of common informers, or of persons interfering from merely sentimental motives (i); but that they must not be so read as to make evidence of great and serious damage a condition precedent to a right to apply. Further, we are of opinion that, wherever one trader, by means of his wrongly (h) Per Bowen, L.J., in Powell's Tm., (1893) 2 Ch. 388; 10 R. P. C. 195. (i) See Lord Selborne's judgment, in Rivière's Tm., 26 C. D. at p. 54 (1884), and the judgments of is standi only. Any person intimidated or harassed by the regis tration. Powell's Case. "registered trade-mark, narrows the area of business open to his rivals, and thereby either immediately excludes, or with reasonable probability will in the future exclude, a rival from a portion of that trade into which he desires to enter, that rival is an 'aggrieved person"" (k). And in the same case the Court of Appeal held, that the fact that the applicants for registration of certain new marks had attempted to support their application by reference to other marks already registered by them, and notwithstanding that they subsequently abandoned the attempt, made the opponents to the registration of the former marks persons aggrieved by the registration of the marks already registered, and therefore persons entitled to apply for the removal of them from the register (7); and, further, that an alleged infringer of a mark is always a person aggrieved by its registration (m). "The practical conclusion of this view," Fry, L.J., said, "is, we think, a sound one. It will stop the practice, of which we have seen instances in this case, of a trader registering his mark without justification, using it as a means to intimidate or coerce other traders, and then, at the bar, alleging that the threat was idle, and the persons against whom it was used are not aggrieved thereby" (n). The words in question have received their most liberal interpretation in the recent case of Powell's Trade-Mark (0). In that case the applicants were being sued to restrain them from passing off a sauce called London Relish as the goods of the registered proprietor of a mark consisting of the words Yorkshire Relish by means of a label said to resemble one of his trade labels. They moved to expunge the mark Yorkshire Relish, and they were held to be "persons aggrieved" notwithstanding that they did not trade in Yorkshire Relish Sauce, and had not even considered the question of trading in it, and that the Court thought it () (1891) 2 Ch. p. 224; 8 R. P. C. 137. (1) Ibid., p. 228. (m) See also Baker v. Rawson, 45 C. D.579; 8R.P.C. 89 (1890), North, J. (n) (1891) 2 Ch. p. 229. (0) (1893) 2 Ch. 388; (1894) A. C. 8; 10 R. P. C. 195; 11 R. P. C. 4, Chitty, J., C. A., and H. L. |