British American Tobacco Company Ltd v St. Regis Tobacco Company Ltd

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Lewis, C.J.,Gordon, J.A.
• Judgment Date: 02 May 1968
• Neutral Citation: AG 1968 CA 4
• Docket Number: Civil Appeal No. 3 of 1967
• Date: 02 May 1968

Court of Appeal

Lewis, C.J., Gordon, J.A.Louisy, J.A.

Civil Appeal No. 3 of 1967

British American Tobacco Co. Ltd.

and

St. Regis Tobacco Co. Ltd.

Appearances:

L. Lockhart for appellant.

C. Harney (holding papers of E.E. Harney) for respondent.

Trademark - Registration of Trademarks — Registration of Trade Marks Act (Cap. 206).

Facts: The issue to be decided was whether the respondent's trade mark should be expunged from the register. Evidence revealed that the Registrar accepted the respondent's trademark.

Held: In this situation the onus was on the applicant to show why the trademark ought not to have been registered, e.g. by showing that the trademark was confusing or deceptive; or that it was a geographical name. The appellant failed to discharge this onus. Appeal dismissed.

Lewis, C.J.

1 This is an appeal from a judgment of the former Supreme Court of the Windward Islands and Leeward Islands in which Mr. Justice Cecil Lewis dismissed a motion to expunge from the Register of Trade Marks the Trade Mark “Gold Band” No. 1092 registered in the name of the respondent in Class 5. This Trade Mark was registered on the 18th July 1964 with effect from the 19th of March 1964, and the class in respect of which it was registered refers to tobacco, whether manufactured or un-manufactured. A number of matters arose in the court below, and were disposed of by the learned judge; but they are not the subject matter of this appeal. The only ground of appeal which learned counsel has argued is Ground 1 — that the learned trial judge was wrong in finding that the words “Gold Band” had no reference to the character of the goods and as such should not have been registered, though he has also made reference to Ground 2, that the learned trial judge was wrong in not finding that the respondent had no bona fide intention of using the said Trade Mark.

2 The application to expunge was supported by an affidavit made by John Rutherford Blakeney dated 8th October, 1965. He alleged in paragraph 3 that his company “and its associated companies and several other tobacco companies have adopted and used gold bands as a common feature of their trade marks, and such gold bands appear on their labels and cartons by way of decorative and added matter or as a separator of the cellophane wrapper from the pack proper of a packet of cigarettes and which gold band is commonly used either at the top portion of a packet of cigarettes or through the middle thereof. In an exhibit marked ‘A’ he has exhibited...