Hansman v Regal Shoe Company

This case concerned a motion brought by Abraham Hansman, a boot and shoe manufacturer, seeking rectification of the Register of Trade Marks under section 71 of the *Trade Marks Act 1905*. Hansman sought to add a note to the registration of Trade Mark No. 5382, held by the Regal Shoe Company, the respondents. The proposed note would limit the Regal Shoe Company's exclusive rights to the word "Regal" in relation to boots and shoes, allowing Hansman to use the word in specific ways related to his manufacturing process and product presentation, as he had done prior to the registration.

During the hearing, Hansman sought to amend his motion to include an application under section 28 of the *Trade Marks Act 1905* for the registration of the word "Regal" as his own trade mark, asserting honest concurrent user rights. The legal issue before the Court was whether it had the jurisdiction to entertain an application for registration under section 28 directly, or if the preliminary procedure of applying to the Registrar first was a mandatory prerequisite.

The Court, presided over by Isaacs J., held that it could not entertain the motion under section 28 directly. His Honour reasoned that section 25 of the Act did not grant the Court an independent and summary jurisdiction to direct the Registrar to register a mark. Instead, section 25 was a restriction on the Registrar, and any application for registration, particularly on the grounds of honest concurrent user, must first be made to the Registrar. This preliminary procedure was essential to preserve the public's right to be heard and to ensure the protection afforded by the Act through publication and notice was not lost.

In deference to the Court's ruling, Hansman withdrew his application under section 28. The original motion for rectification under section 71 was therefore not determined on its merits in this proceeding.