14 CAP.401J
Trade Marks
the foregoing paragraphs (a), (b), (c) and (d), shall not be
registrable under the provisions of this paragraph except
upon evidence of its distinctiveness.
(2) For the purposes of this section, "distinctive" means adapted,
in relation to the goods in respect of which a trade mark is registered
or p.roposed to be registered, to distinguish goods with which the pro
prietor of the trade mark is or may be connected in the course of trade
from goods in the case of which no such connection subsists, either
generally or, where the trade mark is registered or proposed to be
registered subject to limitations, in relation to use within the. extent
of the registration.
(3) The Registrar, or the High Court in the event of an appeal from
a decision of the Registrar, in determining whether a trade mark is
adapted to distinguish as aforesaid, may have regard to the extent to
which
(a) the trade mark is inherently adapted to distinguish as afore
said; and
(b) by reason of the use of the trade mark or of any other cir
cumstances, the trade mark is, in fact, adapted to distin
guish as aforesaid.
(4) An appeal shall lie from any decision of the Registrar under
this section.
(As amended by Act No. 17 of 1980)
Capability of
distinguishing
requisite for
registration in
Pan B
15. (I) In order for a trade mark to be registrable in Part B of the
register, it must be capable, in relation to the goods in respect of
which it is registered or proposed to be registered, of distinguishing
goods with which the proprietor of the trade mark is or may be con
nected in the course of trade from goods in the case of which no such
connection subsists, either generally or, where the trade mark is reg
istered or proposed to be registered subject to limitations, in relation
to use within the extent of the registration.
(2) In determining whether a trade mark is capable of distinguish
ing as aforesaid, the Registrar, or the High Court in the event of an
appeal from a decision of the Registrar, may have regard to the extent
to which
(a)
the trade mark is inherently capable of distinguishing as
aforesaid; and
(h)
by reason of the use of the trade mark or of any other cir
cumstances, the trade mark is, in fact, capable of distin
guishing as aforesaid.
(3) A trade mark may be registered in Pan B notwithstanding any
registration in Pan A in the name of the same proprietor of the same
trade mark or any part or parts thereof.