7. The Registrar of Trademarks exercised his discretion injudiciously in refusing the
registration of Appellant's trademarks leading to a miscarriage of justice.
8. The Registrar of Trademarks committed a distinct and material error of evaluation and
principle in finding that the Applicant and Respondent's trademarks are not capable of
honest concurrent usage.
9. The Registrar of Trademarks failed to assess and determine that the public interest is not
served when the legitimate commercial enterprise is barred from exploiting it trade
descriptive, and that the use of trademarks must not be used by one entity to stifle
genuine trade competition.
I have carefully considered the pleadings as well as the submissions. The first question is
whether in the submissions the Appellant‘s Counsel substituted the grounds of the appeal to the
prejudice of the Respondent. The argument in objection includes the submission that the
Respondent in the affidavit in the reply to the notice of motion did not have an opportunity to
respond to such new grounds. The Appellant‘s Counsel submitted the summary of the grounds
for overturning the decision of the Registrar of Trademarks as the Registrar:
Failing properly to compare the Appellant‘s trademark and the Respondents trademarks,
and specifically in failing to compare them (a) aurally at all; and (b) conceptually as a
whole;
Wrongly determining the Appellant‘s trademarks and the Respondents trademarks are
each mere word marks.
Failing to hold that the word "Java" was descriptive, and either not distinctive or of low
distinctiveness in relation to the services the subject of the application, and failing
properly to address the fact that the word "Java" had therefore correctly been disclaimed
and qualifies for registration under section 19 and 26 of the Trademarks Act 2010.
Failing to find that there was no material similarity between the Appellant‘s trademarks
and the Respondents trademarks; and