"Grounds of objection challenge the decision of the Registrar. For that matter another
ground of objection cannot be entertained without the leave of court obtained as
stipulated under Order 43 rule 2 of the Civil Procedure Rules."
It was my holding that new grounds of appeal cannot be argued without the leave of court.
Having considered the submissions of the Appellant's Counsel the question is whether there are
any new grounds of appeal in the submissions? Secondly the issue is whether the Respondent‘s
defence has been prejudiced thereby. Ground 1 of the notice of motion is so wide to the extent
that it provides that the Registrar of Trademarks erred in law and fact when he failed to properly
evaluate the evidence on record leading to a distinct and material error in refusing registration of
the Appellant's trademarks. What was the error in law and fact in which the Registrar erred? In
my opinion the grounds of failure to compare trademarks globally that is aurally and
conceptually may fall under this ground. It is a sub issue which could be formulated underground
one. Secondly ground 2 is about the word "Java" as a common English noun. The submission
that the Registrar determined the trademark as mere words would also be argued under that
ground. Furthermore the failure to find that the word 'Java' a descriptive word or not distinctive
is a subset of ground 2 of the notice of motion. The question of disclaimer is raised in a ground 4
of the notice of motion. The likelihood of confusion is dealt with in the grounds 5 and 6 of the
notice of motion.
Finally in arguing about the use of inadmissible evidence or extrinsic evidence, there is no
specific ground to support the arguments. However there is a general ground about evaluation of
evidence. Is it sufficient to cover the arguments on inadmissible evidence? If so I do not need to
consider these grounds and the objection of the Respondents Counsel in relations to the two
grounds of inadmissible evidence and use of extrinsic materials may be considered on the merits.
The rest of the submissions are on the face of it supported by the grounds and I will render a
decision when considering the evidence on the other grounds of inadmissible evidence.
Furthermore there is the issue of prejudice to the Respondent. The Respondent has had occasion
to respond to the submissions and no prejudice has been occasioned by the framing of the heads
of submission differently from the grounds provided the grounds or headings arise from the
grounds of the notice of motion as I have noted above.