|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(1989) 3A CLR 1
1987 June 4
[TRIANTAFYLLIDES, P., SAVVIDES. LORIS, STYLIANIDES, KOURRIS, JJ.]
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF COMMERCE AND INDUSTRY AND/OR ANOTHER,
Appellants-Respondents,
v.
SOCIETE ANONYME DES EAUX MINERALES
D' EVIAN OF FRANCE,
Respondents-Applicants.
(Revisional Jurisdiction Appeal No. 578, 579)
Trade Marks - Registration - Proprietor - Meaning of - Does not include person with limited right of use or similar right.
Trade Marks - Registration - Generic or Geographic names - "Evian" water - Decision refusing registration rightly annulled.
Trade Marks - Registration - Fact of registration in another country - Significance.
The appellant Registrar refused to register as a Trade Mark the word "Evian" for water on the grounds that it is a generic or geographic name and that, in an event, the applicants, were not the owners of the relevant springs of water.
In fact the applicants were licensees of the springs, having the exclusive right to use the water of the springs in question for a period until 2027.
A Judge of this court annulled the decision [See (1986) 3 C.L.R 350]. Hence this appeal.
Held. dismissing the appeal:
(1) The trial Judge was right in holding that "Evian" is neither a generic nor a geographical name.
(2) Proprietorship is not defined in the law. Each case is determined on its merits, having regard to the principle that a person with a limited right of use or similar right is not a proprietor. In this case the licensees who have a right to the exclusive use of the springs in question for no less a period until 2027. are proprietors.
(3) Registration in a foreign country is of no consequential significance to registration in this country.
Appeal dismissed with no order as to
costs.
Appeals.
Appeals against the judgment of a judge of the Supreme Court of Cyprus (Pikis, J.) given on the 22nd February, 1986 (Revisional Jurisdiction Cases Nos. 127/84 and 170/84) reported in (1986) 3 C.L.R. 350 until 358, whereby the decisions of the appelants refusing the registration of "Evian" as a trade mark in the Register of Trade Marks were annulled.
St. loannides (Mrs), Counsel of the Republic B. for the Appellants.
C. L. Clerides. for the Respondents.
Cur. adv vult.
TRIANTAFYLLIDES, P.: The Judgment of the Court will be delivered by Mr. Justice Stylianides.
STYLIANIDES, J.: Appeal No. 578 was taken by the appellants-respondents against the Judgment of a Judge of this Court, whereby the decision of the appellant Registrar of Trade Marks refusing the application No. 21436 of the respondents for registration of "EVIAN" as a trade mark in Class 32 of the Register, was annulled.
The facts appear lucidly in the Judgment of the trial Court - (see Societe Anyone v. Republic (1986) 3 C.L.R. 350).
The three reasons for the refusal of the registration are:-
(a) It is a generic name and as such not distinctive to merit registration;
(b)It is a geographical name and its use cannot be monopolized by the applicants; and
(c)The applicants are not the proprietors of the springs of the mineral water and, therefore, not entitled to registration.
The trial Judge annulled the sub judice decision on the ground that it was faulty for misconception of material facts, vagueness and inadequacy of reason.
The main argument for the appellants vas that "EVIAN" is a generic, geographical name, and that the applicants were not the proprietors.
We were referred to Webster's New International Dictrionary with which the Registrar dealt in his decision but we are not in accord with the Registrar as the definition of "EVIAN" water is slightly different and connotes a different meaning from the one alleged by the Registrar. We agree with the trial Judge that it is neither generic nor a strictly geographical name and, therefore, the Registrar was labouring under a material misconception of fact.
With regard to proprietorship, there is no definition in the Law; each case must be determined on its own merits having regard to the general principle that proprietor cannot be a person with limited right of use or similar right.
In the present case the applicants are licensees and they have the exclusive right to use the two springs from which this water is taken for no less a period than up to 2027, and, therefore, they can be deemed proprietors in the sense of the Law under the circumstances of this case, as they have the exclusive right for such a long prospective period.
It was strenuously argued that the Judgment under appeal was influenced by acceptance of a similar application in the United Kingdom.
Registration in England and indeed in any foreign country is of no consequential significance in proceedings for registration in Cyprus. It is of little or no bearing on whether the mark is capable of distringuishing the applicants' goods in this country. The trial Judge did not give any weight to foreign registration and did not misdirect himself as to the law on this point. He simply made an observation for guarding against a future situation after 2027.
What we have said above applies also to Appeal No. 579. We are further in agreement with the trial Judge that the Registrar of Trade Marks had examined the two applications - 21436 and 21312 - in same breadth.
For the aforesaid reasons both Appeals Nos. 578 and 579 are hereby dismissed. The sub judice decisions of the appellant Registrar are declared null and void and of no effect whatsoever under Article 146.4(b) of the Constitution.
Let there be no order as to costs.
Appeals dismissed with no order as to costs.