1954-HKRS29-8-21_Part04 — Page 18

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(2) Any person who is desirous of obtaining advice as aforesaid shall make application to the Registrar in the prescribed

manner.

(3) If on an application for the registration of a trade mark as to which the Registrar has given advice as aforesaid in the affirmative, made within three months after the advice is given, the Registrar, after further investigation or consideration, gives notice to the applicant of objection on the ground that the trade mark is not adapted to distinguish, or capable of distinguishing, as the case may be, the applicant shall be entitled, on giving notice of withdrawal of the application within the prescribed period, to have repaid to him any fee paid for the filing of the application.

Hearing

74. Where any discretionary or other power is given to the before exercise of Registrar by this Ordinance or by the rules, he shall not exercise that power adversely to the applicant for registration or the re- gistered proprietor of the trade mark in question without (if duly required so to do within the prescribed time) giving to the upplicant or registered proprietor an opportunity of being heard.

discretion- ary power of Registrar,

Certificate of validity.

Trade

usage, etc.

to be

considered.

Legal proceedings and appeals.

75. In any legal proceeding in which the validity of the re- gistration of a registered trade mark comes into question and is decided in favour of the proprietor of the trade mark, the Court may certify to that effect, and if it so certifies then in any subs sequent legal proceeding in which the validity of the registration comes into question the proprietor of the trade mark on obtain- ing a final order or judgment in his favour shall have his full costs, charges and expenses as between solicitor and client, unless in the subsequent proceeding the Court certifies dat he ought not to have them.

76. In any action or proceeding relating to a trade mark or trade name the tribunal shall admit evidence of the usages of the trade concerned and of any relevant trade mark or trade name or get-up legitimately used by other persons,

appearance

71. (1) In any legal proceeding in which the relief sought Registrar'a includes alteration rectilization of the register, the Registrar in proceed- shall have the right to appear and be heard, and shall appear if Ings invol-

ving so directed by the Court.

rectifi- calion.

(2) Unless otherwise directed by the Court, the Registrar in lieu of appearing and being heard may submit to the Court * statement in writing signed by him, giving particulars of the proceedings before him in relation to the matter in issue or of the grounds of any decision given by him affecting it or of the practice of his office in like cases, or of such other matters re- levant to the issues, and within his knowledge as Registrar, as he thinks fit, and the statement shall be deemed to form part of the evidence in the proceeding.

from

78. Except when expressly given by the provisions of this Appeal Ordinance or the rules there shall be no appeal from a decision of Registrar. the Registrar, but the Court in dealing with any question of the rectification of the register (including all applications under the provisions of section 48) shall have power to review any decision of the Registrar relating to the cutry in question or the correction sought to be made.

79. (1) Every order of the Court shall be subject to appeal Appeal to

Full Court. to the Full Court. The appeal shall be commenced within Discretion twenty-one days from the time when the decision appealed of Court in

appeals. against is pronounced or marle.

(3) In any appeal from a decision of the Registrar to the Court under this Ordinance, the Court shall have and cxcrcise the same discretionary powers as under this Ordinance are conferred upon the Registrar.

80. Where under any of the provisions of this Ordinance Procedure an applicant has an option to make an application either to the incase ni Court or to the Registrar-

option to apply to

Court or

(a) if an action concerning the trade mark in question is Registrar.

pending, the application must be made to the Court:

(b) if in any other case the application is made to the Re- gistrar, he may, at any stage of the proceedings, refer the application to the Court, or he may, after hearing the parties, determine the question between them, subject to appeal to the Court.