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  • Biographies from Edward Bach.Org
    She had been involved in healing for many years before joining the Bach Centre As an Aquarian she was always looking for the values that lie beyond the physical and material To her the world of the spirit was a familiar and normal context of reality Her need to understand the events that surrounded her personal loss and grief made her the sensitive and sympathetic person to whom all could turn for help Nickie was the mother of four children and with Malcolm her loving husband for 53 years she was centred on family life Nickie played bridge but without any great passion she loved swimming and did daily lengths in the pool She loved the Mediterranean and its warmth for many years she visited southern Spain making remedies there and perhaps this lead her on retirement first to Crete and then to California In California Nickie was drawn to the Self Realization Fellowship of Paramahansa Yogananda Here for the last three years she welcomed visitors to the Lake Shrine It is typical of Nickie that she quickly became recognised and loved in that community Modest in all things she considered her responsibilities there lightly and simply enjoyed the opportunity to meet people and introduce them to the quietness and tranquillity of the gardens Through the flowers in the garden she lead people to the world she loved Nickie had written occasional pieces in the Bach Remedy Newsletter but thought that her knowledge was simply common sense Her practical approach to the subject of Flower Remedies can be heard in the cassette tapes that were made of her in conversation talking about how to use Dr Bach s Flower Remedies A typical remark would be it s so easy that a child could do it well children do Not interested in power in material success in dominance or control Nickie was in the world but not of the world She kept her innocence and maintained that everything would come to good in the end as the truth must surely come to light Francis Wheeler Francis J Wheeler 1877 1960 came from Southport and was a homoeopath and friend of Dr Bach He helped prove the remedies as each was discovered Author of The Bach Remedies Repertory 1952 He was not related to the Australian Dr Charles Wheeler who was co author with Bach of Chronic Disease a Working Hypothesis 1925 Frances Thomas Frances Thomas was brought up using the Bach remedies as her father Dr Francis Wheeler was a medical friend of Dr Bach Her twin sister was ill with appendicitis and Frances attributed her speedy recovery to Dr Bach She worked as editor of the Bach Remedy Newsletter Nora Weeks Nora Weeks was born on 16 July 1896 and died on 29 January 1978 She trained in radiography the use of X ray machines in the early 1920s at Guy s Hospital London and also worked as a physiotherapist and medical gymnast She practised in Harley Street London then

    Original URL path: http://www.edwardbach.org/Research/biographies.asp (2016-02-10)
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  • Edward Bach The Bach flower research programme
    of Flower Therapy It has to be The Twelve Healers Other Remedies by Dr Bach a slim volume of 30 pages I found a copy in 1976 and was immediately struck by the unusual ideas it presented The introduction is so brief that it hardly tells a reader what to expect or what the subject is really about Then a few lines under each of heading Rock Rose Mimulus Cherry Plum Although there have been many changes made to the text the description of the 38 Bach flower essences are still as Bach wrote them Translated into all major languages this book is still a stepping off point on the journey of self discovery Here we have his simple words For those who blame themselves Even when successful they think that they could have done better A description of his own state of mind as fresh today as in 1935 when he found Pine trees flowering and prepared the remedy He described the remedy states in a language which all could comprehend Bach listed the plants and trees to be used with a clear description of how to make the mother tinctures But it was removed from English editions after 1979 and is not found in the many translations which have been made So the text describing The Sunshine Method and The Boiling Method was deliberately suppressed Whatever reasons are given to justify this it was against the spirit of his work He was a man who thought little of possessing knowledge other than that it gave him the capacity to help other people His discoveries were not there for personal gain but like a true scientist he published all and gave freely to those who would read or listen So important was this information that I republished it when

    Original URL path: http://www.edwardbach.org/research/myFavBook_JB.asp (2016-02-10)
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  • Edward Bach The Bach flower research programme
    Mimulus Cherry Plum A pesar de que se ha hecho muchas modificaciones al texto las descripciones de las 38 esencias florales de Bach están tal y como las escribió Traducido en la mayoría de idiomas este libro es todavía un punto de partida en el viaje del auto descubrimiento Aquí tenemos sus palabras claras Para aquellos que se culpan a sí mismos Incluso cuando afortunados ello creen que podrían haberlo hecho mejor Como una descripción de su propio estado mental este texto es tan actual hoy en día como lo fue en 1935 cuando Bach encontró pinos florecidos y preparé un remedio Describió el estado de los remedios en un lenguaje que todos pudiéramos entender Bach listó las plantas y los árboles para ser usados con una clara descripción de cómo hacer las tinturas madres Pero esta parte se sacó de las ediciones inglesas después del 1979 y no se encuentra en muchas de las traducciones que se han hecho Es por esto que el texto en el que se describe El Método Solar y El Método de Hervir fue deliberadamente suprimido Cualquiera que fueran las razones que se den para justificar fue en contra del espíritu de su trabajo Fue un hombre que mostró muy poco interés en poseer el conocimiento sino que más bien tenía la capacidad de ayudar a las otras personas Sus descubrimientos no estuvieron allí para una ganancia personal sino como un verdadero científico lo publicó todo y lo dio en libertad a aquellos que quisieran oír y escuchar Tan importante fue esta información que yo la volví a publicar cuando la obra de Bach estuvo fuera de copyright 50 años más tarde de su muerte La censura sobre Bach y su visionario trabajo se ha perdido pero todavía permanece en contraposición y en algunos

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  • Edward Bach The Bach flower research programme
    commentaries Legal judgements Poetry and essays Dance and music Visual arts Gardens Poetry and essays Literary contributions may take the form of essays and critical commentaries as illustrated by the Gentian article below or consist of new or newly discovered poems or prose relating directly to a remedy plant We hope to build up an anthology of writings for each of the remedies Literature 38 haiku Paul Conneally has contributed a sequence of 38 poems in the Japanese haiku tradition presenting the remedies from Agrimony to Willow The poet s compassionate response to Dr Bach s indications is distilled into three short lines for each remedy Your comments on these poems are welcomed Binsey Poplars Gerard Manley Hopkins meditation on felled trees in which the gesture of Aspen is skilfully evoked Even the shape and sounds of the poem contribute to this Remedy link Aspen Speaking of flowers As well as gathering poems prose and related critical commentaries which connect with specific remedy plants we have started a more wide ranging flower anthology Remedy link Gentian Critical commentaries Gentian Glenn Storhaug considers Gentian poems by Emily Dickinson and DH Lawrence as well as offering some more wide ranging speculations on

    Original URL path: http://www.edwardbach.org/Research/poetry.asp (2016-02-10)
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  • Edward Bach - Dance, music and the flower remedies
    this potential for transformation in a focussed even systematic way This project Musical Remedies by the composer Andrew Morris of Herefordshire England is an attempt to translate the essence of the Bach Flower Remedies into the language of music More information Dance a flower and let it heal you For every one of the 38 Bach flower essences a dance has been created The joyful or meditative circle dances help body and mind to absorb the healing potential of the flowers Bolette Daniels Beck is a Danish music therapist and has provided a general introduction to the use of dance associated with the Bach flower remedies with particular reference to the work of Anastasia Geng as developed and taught by Martine Winnington First published in July 1999 in Nyt Aspekt Copenhagen How dance and Bach flowers came together The flower dances were created in the 1980s and 90s by Anastasia Geng 1922 2002 who lived in Germany but was originally from Latvia Anastasia had throughout her life been interested in the traditional music and dances of her native country In Latvia the songs music and dances have roots that go all the way back to pre Christian times to the

    Original URL path: http://www.edwardbach.org/Research/music.asp (2016-02-10)
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  • Edward Bach The Bach flower research programme
    share your discoveries Painting Leonardo da Vinci 1452 1519 Leonardo da Vinci s drawing of the Star of Bethlehem Ornithogalum umbellatum combines accurate depiction of the geometrically perfect flowers with a symbolic presentation of the leaves as a swirling vortex of lines Could this picture be emblematic of the spirit crystalline flower born into the material world turbulent leaves The significance of this interpretation for the Star of Bethlehem as a remedy is discussed at greater length in Bach Flower Remedies Form and Function by Julian Barnard see bibliography Remedy link Star of Bethlehem Pierre Prins 1838 1913 Spoken of as the forgotten Impressionist Prins is best known for pastel drawings Here a solitary figure sits in an apple orchard at dawn The brightness of the blossom is more grey than white drawn as it is against the light contre jour Nonetheless the overwhelming sense of radiance in the blossoms of the trees is powerfully evoked Although this is a fruit orchard probably in Normandy in France it still conveys the impression of Crab Apple with its blazing light Remedy link Crab Apple Cecil Collins 1908 1989 The visionary artist Cecil Collins painted Angel with Adam in 1950 It depicts Adam sitting in Paradise gazing towards the sun Behind him an angel with wings outstretched seems to protect and shield him The third element in the painting is a tree The tree is still forming undifferentiated as yet into species The branches form a cross intimating crucifixion and death and the bark seems to be full of eyes the eyes of consciousness The leaves tumble in spirals falling like water In his pre lapsarian state Adam seems troubled and yet drawn to a future which we cannot see his incarnation on earth Here separation occurs separation into individuality Bach spoke

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  • Edward Bach The Bach flower research programme
    Genesis 2 29 When I go into my garden with a spade and dig a bed I feel such an exhilaration and health that I discover that I have been defrauding myself all this time in letting others do for me what I should have done with my own hands Ralph Waldo Emerson A garden is the best alternative therapy Germaine Greer A garden stimulates our mental faculties In a garden we can learn by trial and error we can create we observe the cycles of life and draw conclusions At the same time as we are rooted in a physical present a garden encourages us to dream of the future and meditate on the past We can plan A garden is a constant potential for success Next year it will be better more beautiful and more bountiful As we grow older we sow seeds which we know will never come to maturity in our lifetime but which nonetheless we will leave as a legacy for future generations Our optimism develops and we feel positive about the future And in the process of envisaging this future we learn patience for there s nothing like a garden for developing that quality along with sheer awestruck wonder at the glory of creation and the ever repeating miracle of renewal Much as you might want to you just can t rush it Stress and aggression anger impatience nervousness or depressions have no place in the garden They melt away in the actions of digging pruning weeding and planting or are gently soothed into happiness as we simply allow the natural environment to act upon our being Plants respond to our care unconditionally If we show our love to them they will return it to us by thriving irrespective of who we are where

    Original URL path: http://www.edwardbach.org/Research/gardens.asp (2016-02-10)
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  • Bach/Healing Herbs Legal Case
    they used the expression brand The seventh category of evidence was that from the four experts called by BFR The judge considered that their evidence was of more assistance to HHL than to BFR 22 Having considered the various categories of evidence to which I have referred the judge posed to himself three questions It is common ground that the questions were the right ones but in view of some of the argument it is necessary to set them out They were 1 Whether the trade mark was properly registrable as at the date of registration without reliance on any distinctive character which it may have acquired as a result of the use which had been made of it 2 Whether it was properly registrable on the basis of any distinctive character which it had acquired as a result of the use which had been made of it and 3 Whether it has acquired a distinctive character as a result of the use which has been made of it to date 23 In his consideration of those questions the judge also considered three propositions submitted to him by leading counsel for HHL He acknowledged that though they were perhaps too rigid they provided useful general guidance As those propositions particularly the second have been criticised it is necessary to set them out They are 1 The name of a product is the very antithesis of a trade mark It tells you what the product is 2 So long as a name retains the capacity to function as the name of a product it is ineligible for registration as a trade mark 3 The question with which the court is confronted in the present case and which should be answered in the affirmative on the applicant s contention is whether the word BACH retains the capacity to function as the name of a product If it does then on the basis of his first two propositions Mr Hobbs contends that the applications must succeed 24 The judge dealt in detail with the evidence and submissions made to him in connection with the first mark namely BACH FLOWER REMEDIES judgment pp 29 43 I have already referred para 17 to his conclusion as to the effect of the documentary evidence His conclusion on the oral evidence was judgment p 35 In my judgment the effect of the oral evidence was that the expression Bach Flower Remedies is understood by the majority in each of the main categories represented by the witnesses i e Bach Practitioners Retailers members of the public and experts in the alternative health field to be descriptive of the Remedies generally rather than of the Remedies as specifically made by Nelsons or the Bach Centre In so far as there is as I accept there to be a significant body of persons in these categories of witness who believe that the expression is a badge of origin it appears to me that the weight to be given to that evidence should be discounted to a substantial extent because the only real commercial source of the Remedies up to about 1988 89 has been the respondent and the applicant s share of the market since that date has been very slight His overall conclusion was Indeed taking into account all the oral evidence I have heard and all the documentary evidence I have seen it appears to me that from well before 1979 the expressions Bach Remedies Bach Flowers and Bach Flower Remedies were used to mean and were understood to mean the Remedies generically and not merely the Remedies made or supplied by the Bach Centre or made up from tinctures supplied by the Bach Centre Additionally the evidence seems to me to make it clear that those operating from the Bach Centre represented easily the most important single source for publicising and propagating both the Remedies and the expressions Bach Remedies and Bach Flower Remedies in the generic sense from before 1979 at least until the mid or late 1980 s 25 As I have already indicated the judge decided on the basis of these findings that the registrations had been in breach of s 3 1 c That conclusion is not challenged by BFR During the course of argument leading counsel for BFR expressly conceded that the judge had reached the correct conclusion on the first two of the questions he posed for himself But in stating his conclusion judgment p 41 the judge also indicated that he considered that the objection applied to the mark BACH FLOWER REMEDIES both as at 1979 and as at the present time Later judgment p 43 he again made it plain that he considered that HHL had made out its case in relation to the first mark as at 1979 and as at 1998 Similar conclusions were reached in respect of all the other marks save that the signature and device marks were allowed to remain on the register but subject to disclaimers for the words Bach Flower Remedies or Bach 26 Since Neuberger J gave judgment there have been three important decisions of this court and of the European Court of Justice I will refer to them in chronological order The first is Windsurfing Chiemsee Produktions v Huber 1999 E T M R 585 Windsurfing Chiemsee In that case the European Court of Justice was concerned with the mark CHIEMSEE which is the name of a well known lake in Bavaria and had been the name given by Windsurfing Chiemsee Produktions to its range of sportswear The application to register the word as a trade mark was rejected but registration of a particular graphic representation of it was accepted Huber and another also sold sportswear under the name of CHIEMSEE but his graphic representation of it was different to that registered by Windsurfing Chiemsee Produktions The latter claimed that notwithstanding those differences its mark was being infringed The second question referred to the European Court of Justice asked what was required for a mark falling within Article 3 1 c because it designated geographical origin to acquire a distinctive character through use for the purposes of Article 3 3 Articles 3 1 c and 3 3 are in the same terms as s 3 1 c and the proviso to s 3 1 Trade Marks Act 1994 The European Court of Justice pointed out that Article 3 3 constituted a major exception to the rules laid down in paras b to d of Article 3 1 The Court observed paragraph 46 that the distinctive character to be obtained through such use must serve to identify the product as originating from a particular undertaking and thus to distinguish that product from goods of other undertakings and that in such a case the geographical designation has gained a new significance and its connotation no longer purely descriptive justifies its registration as a trade mark paragraph 47 The guidance to the national court is contained in paragraphs 51 and 52 in these terms 51 In assessing the distinctive character of a mark in respect of which registration has been applied for the following may also be taken into account the market share held by the mark how intensive geographically widespread and long standing use of the mark has been the amount invested by the undertaking in promoting the mark the proportion of the relevant class of persons who because of the mark identify goods as originating from a particular undertaking and statements from chambers of commerce and industry or other trade and professional associations 52 If on the basis of those factors the competent authority finds that the relevant class of persons or at least a significant proportion thereof identify goods as originating from a particular undertaking because of the trade mark it must hold that the requirement for registering the mark laid down in Article 3 3 of the Directive is satisfied However the circumstances in which the requirement may be regarded as satisfied cannot be shown to exist solely by reference to general abstract data such as predetermined percentages 27 The second case is the decision of this court in Philips Electronics NV v Remington Consumer Products Ltd Simon Brown Aldous and Mantell LJJ 5th May 1999 1999 E T M R 816 In that case Aldous LJ observed pp 822 823 in relation to the decided cases under Trade Marks Act 1938 and its predecessors The 1994 Act was passed to implement the Directive which swept away old law and introduced a new law of trade marks for the Member states of the European Union That new law drafted with input from representatives of the Member States should not be assumed to be the same as the old UK law nor to be different from it The law must be determined from the Act construed in the light of the Directive Cases decided under the old law are no longer authoritative However knowledge of the reasoning in such cases can provide awareness of the types of problems that arise during use of trade marks and general feel for them That case concerned the registration of a three headed rotary electric shaver by Philips When Philips sued Remington for infringing its mark by offering for sale and selling three headed rotary razors Remington claimed that the mark was invalid as having been registered in breach of each of the paragraphs of s 3 1 In relation to s 3 1 a Aldous LJ observed pp 825 826 that the proviso as to subsequent use did not apply and said That suggests that the capability of distinguishing depends upon the features of the trade mark itself not on the result of its use Thus a person who has had monopoly use of a trade mark for many years may be able to establish that it does in fact denote his goods exclusively but that does not mean that it has a feature which will distinguish his goods from those of a rival who comes into the market The more the trade mark describes the goods whether it consists of a word or shape the less likely it will be capable of distinguishing those goods from similar goods of another trader An example of a trade mark which is capable of distinguishing is WELDMESH whereas WELDED MESH would not be The former despite its primary descriptive meaning has sufficient capricious alteration to enable it to acquire a secondary meaning thereby demonstrating that it is capable of distinguishing The latter has no such alteration Whatever the extent of the use whether or not it be monopoly use and whether or not there is evidence that the trade and public associate it with one person it retains its primary meaning namely mesh that is welded It does not have any feature which renders it capable of distinguishing one trader s mesh from other traders welded mesh In the event the Court of Appeal referred certain questions to the European Court of Justice for preliminary rulings the third of which sought guidance whether use of a sign representing the shape of the goods in question only by a monopoly supplier so that the relevant trade and public associate the goods with that trader and no other could be sufficient We were informed that before making the reference in June 1999 the Court was not referred to the decision of the European Court of Justice in Windsurfing Chiemsee 28 The third case is the judgment of the European Court of Justice delivered on 22nd June 1999 in Lloyd Schuhfabrik Meyer v Klijsen Handel BV 1999 E T M R 690 Lloyd Schuhfabrik In that case Lloyd Schuhfabrik had registered the mark LLOYD in respect of shoes Klijsen sold shoes under the mark LOINTS It was claimed that use of the latter mark infringed the former because of the enhanced distinctive character claimed for the mark LLOYD and the aural similarity between the two The European Court of Justice applied the principles established in its decision in Windsurfing Chiemsee and reiterated its rejection of the statistical approach With regard to the public s appreciation of the mark it observed 25 In addition the global appreciation of the likelihood of confusion must as regards the visual aural or conceptual similarity of the mark in question be based on the overall impression created by them bearing in mind in particular their distinctive and dominant components The wording of Article 5 1 b of the Directive there exists a likelihood of confusion on the part of the public shows that the perception of marks in the mind of the average consumer of the category of goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details see to that effect SABEL paragraph 23 26 For the purposes of that global appreciation the average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect see to that effect Case C 210 96 Gut Springenheide and Tusky 1998 E C R I 4657 paragraph 31 However account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind It should also be borne in mind that the average consumer s level of attention is likely to vary according to the category of goods or services in question It is not disputed that the test of the average consumer applied by the European Court in Gut Springenheide 1998 ECR I 4657 also decided after the judgment of Neuberger J in the instant case is to be applied in this case Are the marks signs capable of distinguishing goods of one undertaking from those of another 29 As I have already indicated the first issue is whether the registration of the marks was in breach of s 3 1 a That involves considering whether as signs they were at the time of registration capable of distinguishing goods or services of one undertaking from those of other undertakings as required by s 1 1 The proviso to s 3 1 permitting registration of a mark which has acquired a distinctive character as a result of the use made of it does not apply to the prohibition contained in s 3 1 a 30 In view of his conclusion on the application of s 3 1 c the judge did not decide this question But he observed that judgment p 42 The question of distinctiveness under the Act is one of fact as Jacob J explained in British Sugar In the sense that there are members of the public and retailers who even after Mr Hobbs s cross examination see the expression Bach Flower Remedies and the word Bach as badges of origin it could be said that the expression and word are capable of distinguishing the respondent s Remedies from those produced by others On the other hand given the way in which the expression Bach Flower Remedies and the word Bach are and have been used and understood there must be a powerful argument for saying that in common with the robust approach of Jacob J in Philips I should find against the respondent under Section 3 1 a as well 31 For BFR it is submitted that the judge should have determined that the marks were capable of the distinction required by s 1 1 both because the point was before him and more importantly because it was a necessary preliminary to determining the proper construction and application of ss 3 1 c and 47 1 It is submitted that the proviso to s 3 1 in its application to paragraphs b to d alone shows that use is irrelevant to the questions posed by paragraph a The word Bach so it is submitted is not an ordinary English word and is for that reason a sufficiently capricious addition to render the mark capable of providing the distinction required by s 1 1 Reliance is placed on the dictum of Aldous LJ in Philips Electronics NV v Remington Consumer Products Ltd at pp 825 826 to which I have already referred 32 This is disputed by HHL In essence HHL submits that the capability of a sign to provide the requisite distinction depends on its meaning and that the meaning of any word may depend in part on its normal use Therefore so it is submitted it is not correct altogether to ignore the use of the word BACH in the period prior to registration 33 I prefer the submissions for HHL First it is not correct to interpret the four paragraphs of s 3 1 as mutually exclusive There is an obvious overlap between paragraphs a and b and as pointed out by Robert Walker LJ in Re Proctor Gamble s Trade Mark Application 1999 E T M R 375 at p 382 between paragraphs b c and d Second the use of the word sign as the subject matter of paragraph a as opposed to trade marks in the remaining sub paragraphs shows that compliance with that paragraph is a preliminary to the application of the rest Thus paragraphs b to d each assume that the sign is capable of the requisite distinction Third it is in the context of a sign which is capable of affording the requisite distinction that the proviso requires consideration of whether by usage it has in fact done so It would be absurd to apply the proviso to paragraph a as well if the sign is not capable of affording the distinction there is no point in considering whether by use before the application for registration it has in fact done so Fourth it follows from the foregoing that the application of the proviso to paragraphs b to d alone cannot operate as an implied prohibition on the consideration of prior use as it affects the meaning of the sign for the purposes of paragraph a 34 I accept the submission that the meaning of a word may depend on its usage It is not uncommon for a proper name by use to acquire an adjectival meaning which is descriptive of the article to which it is applied Examples given in the course of argument demonstrate the point Thus the terms a Bunsen burner and a Wellington boot are wholly descriptive and cannot without more distinguish such burners or boots of one undertaking from those of another In accordance with that use the expression has become the common name in the trade for the product in question cf s 46 1 c The question is whether or not the word BACH had by 1979 acquired such a meaning so as to be incapable without more of affording the requisite distinction If it had then s 1 1 is not satisfied the word BACH cannot be a capricious addition so that registration of the sign would be in breach of paragraph a if it had not then the word BACH is an addition to the words flower remedies which is capricious because it is not purely descriptive so that both the expression BACH FLOWER REMEDIES and the word BACH are capable of affording the necessary distinction Accordingly I accept the submission that it is both permissible and necessary in considering the application of paragraph a to determine the meaning of the word as used at the time of the application for registration I do not understand Aldous LJ in Philips v Remington in the passage I have quoted to have been considering the relevance of use to the meaning of the word 35 The usage in question must be by those engaged in the relevant trade or activity Normally that will be the usage of the average consumer of the goods in question as described in Lloyd Schuhfabrik Obviously the evidence on that question is not limited to those who are consumers or end users but may extend to others concerned in the trade such as manufacturers wholesalers and retailers But I do not think that the court is assisted by repetitious evidence from individuals put forward by the parties whether expressly or not as archetypal average consumers or end users for by definition no one individual is such a consumer or end user and the issue cannot be resolved by counting heads We were told that the judges before whom cases of this sort are heard have increasingly imposed restrictions on the quantity of such evidence they are prepared to admit In my view that practice is to be encouraged 36 The judge recognised that in some respects the evidence tended to show that the word BACH was used in a distinctive sense Thus at page 23 he recorded that in the case of some retailers when an employee of BFR s solicitors went into the relevant shops and asked for a Bach Flower Remedy the relevant witness or an assistant in the shop reacted as if reference was being made to BFR s products only At page 35 he recognised there to exist a significant body of persons in these categories of witness Bach Practitioners retailers members of the public and experts who believe that the expression is a badge of origin but considered that the weight to be given to that evidence should be discounted to a substantial extent because the only real commercial source of the Remedies up to about 1988 89 has been the BFR and HHL s share of the market since that date has been very slight At page 42 in the passage I have already quoted the judge again accepted that there were members of the public and retailers who notwithstanding their cross examination saw the expression Bach Flower Remedies and the word Bach as badges of origin 37 For my part I do not think that these qualifications sufficiently detract from the judge s clear findings as to the meaning of the expression and word in 1979 and thereafter to justify a conclusion that they then complied with s 1 1 The decision of the European Court of Justice in Lloyd Schuhfabrik came after Neuberger J had given judgment in the instant case Thus he had no argument on or opportunity to consider the average consumer test It was not suggested by either side that in those circumstances we should order a new trial It was accepted that we should decide the issue as best we can in the light of the judge s findings 38 On that basis the evidence of a capability to distinguish to which I have referred should be rejected as not applicable to the average consumer as defined by the European Court of Justice Such a person is deemed to be reasonably informed reasonably observant and circumspect But the actions and beliefs of the persons who prompted the comments of the judge I have referred to in paragraph 36 should not in my view be attributed to the average consumer In the case of the first category the relevant action appears to have been prompted by carelessness and ignorance which are not to be attributed to the average consumer In the case of the second the judge rejected the evidence as sufficient to undermine his clear findings at page 38 that in 1979 and thereafter the expression Bach Flower Remedies and the word Bach would have been used and understood in a generic sense In those circumstances I cannot see how any different understanding can be attributed to the average consumer If the average consumer is to be regarded as reasonably informed observant and circumspect then he must know the sense in which the word Bach was used and understood and that sense was generic 39 For these reasons I conclude that the expression Bach Flower Remedies and the word Bach in both 1979 1989 and 1991 failed to satify s 1 1 so that the registrations of those marks was in breach of s 3 1 a It follows that I would dismiss the appeal on this basis However this was not the ground on which the application was decided by the judge Moreover in reaching this conclusion I have inevitably relied on propositions not advanced before the judge As the second issue was fully argued I consider that I should deal with it also Has the expression Bach Flower Remedies and the word Bach acquired a distinctive character in consequence of their use since registration 40 It is necessary to approach this issue on the footing that a contrary to my conclusion on the first issue the expression and word were at the time of registration capable of affording the distinction required by s 1 1 but b as conceded by BFR registration was in breach of s 3 1 c because the expression and word consisted exclusively of signs or indications which may serve in trade to designate the kind quality or other characteristics of goods In those circumstances the question is whether in the terms of s 47 1 in consequence of the use which has been made of the mark it has after registration acquired a distinctive character in relation to the goods of BFR Counsel for BFR suggested that a similar point arises in respect of all marks registered after 1979 because of the terms of the proviso to s 3 But he accepted that if he could not establish his s 47 defence as at the time of the application or the hearing then he would be unable to establish a defence under the proviso at any earlier time after 1979 This helpful and realistic concession has enabled us to concentrate on the events between 1979 and 1997 41 The issue is one of fact It is not disputed that the onus of proving the defence lay on BFR The judge made no finding to support it BFR contends that he should have done It contends that although the judge correctly posed the three questions to which I have already referred paragraph 22 he only answered the first two of them It is submitted that the judge gave no proper consideration to the proviso to s 3 or the comparable provisions of s 47 It is suggested that the judge was misled by the second proposition advanced by counsel for HHL to which I have already referred paragraph 23 into applying principles established by earlier cases decided in England but inconsistent with the principles apparent from the Directive and the decisions of the European Court of Justice 42 I have no hesitation in rejecting the first two submissions The formulation of the third question inevitably reflected the provisions of s 47 and in respect of marks registered between 1979 and 1997 the proviso to s 3 as well Those two provisions were fully set out on pages 27 and 28 of his judgment and there is no reason to think that the judge did not have them in mind His answer to the third question was given in the passages on pages 41 and 43 to which I have already referred paragraph 25 In my view those answers necessarily involved express findings of fact that the marks had not acquired a distinctive character in consequence of their use after 1979 43 With regard to the third and fourth submissions it is necessary to refer to the reference by Neuberger J to the dictum of Viscount Maugham in Shredded Wheat Co v Kelloggs 1940 57 RPC 137 At page 30 Neuberger J said While I am persuaded by Mr Bloch that the three propositions propounded by Mr Hobbs are perhaps somewhat too rigid it does seem to me that they have considerable force and at least provide useful general guidance In that connection I derive assistance from certain passages in well known judgments In The Shredded Wheat Co Ltd v Kellogg Co of Great Britain Ltd 1940 57 RPC 137 Viscount Maugham said at 147 that I t may be useful to cite the statement by Mr Justice Parker in In re Gramophone Company s Application 1910 2 Ch 423 at page 437 since he was a master in this branch of law For the purpose of putting a mark on the register distinctiveness is the all important point and in my opinion if a word which has once been the name of the article ought ever to be registered as a trade mark for that article it can only be when the word has lost or practically lost its original meaning As long as the word can appropriately be used in a description of the articles or class of articles in respect of which a trade mark is proposed to be registered so long in my opinion ought the registration of that word for those articles or that class of article to be refused Neuberger J also referred to the statement of Jacob J in British Sugar 1996 RPC 281 at 302 to the effect that for a common descriptive term to acquire a distinctive character it must be shown that its original meaning has been displaced 44 Counsel for BFR submitted that these statements failed to recognise two principles discernible in the new Act and the decisions of the European Court of Justice The first is the recognition apparent from ss 3 1 c and 11 2 b that a mark may be distinctive and therefore registrable notwithstanding the existence of the attributes referred to in s 3 1 c yet capable of honest use in a descriptive sense in relation to the same attributes as permitted by s 11 2 It is contended that there may co exist in a mark both a distinctive and descriptive meaning Reliance is also placed on the statement in paragraph 52 of the judgment of the European Court of Justice in Windsurfing Chiemsee to the effect that it suffices that the mark is distinctive to at least a significant proportion of the relevant class The converse of that proposition it is suggested is that the mark is descriptive to the rest of the relevant class The suggested conclusion having coalesced the two points appeared to be that for the purposes of the proviso to s 3 1 and s 47 1 a mark might acquire a distinctive character from use if a significant proportion of the relevant class recognised it to bear both a distinctive character and descriptive connotations 45 I do not accept those submissions either separately or as coalesced First it has never been the law and counsel for HHL did not suggest that it had been that the mark must be universally recognised as distinctive If it were otherwise the rights of traders would be dependent on the views of the ignorant and illiterate The observations of Viscount Maugham and Jacob J to which the judge referred were not directed to the meaning of a word or mark to the totality of mankind What is necessary in the words of the Act and the Directive is that the word or mark should distinguish the goods or services of one undertaking from those of other undertakings s1 1 so as to guarantee the trade mark as an indication of origin 10th Recital to the Directive If to a real or hypothetical individual a word or mark is ambiguous in the sense that it may be distinctive or descriptive then it cannot comply with the requirements of the Act for it will not provide the necessary distinction or guarantee It is in that sense that a common or descriptive meaning must be displaced It is also in that sense that I accept the second submission made by counsel for HHL before Neuberger J 46 In my view the provisions of s 11 2 do not suggest otherwise Use of an identical sign on identical goods constitutes infringement by virtue of s 10 1 without more In any other case it is necessary to show a likelihood of confusion S10 2 or the taking of unfair advantage of or detriment to the distinctive character or repute of the mark S10 3 S 11 2 concerns use in accordance with honest practices of indications of the designated type It says nothing about what is required by way of a distinctive character so as to justify the registration of the mark in the first place It certainly does not indicate that the mark can be both distinctive and descriptive so that if used on identical goods it would not constitute infringement under S 10 1 47 In my view it is clear that the test laid down by the Act and the principles established or confirmed by the European Court of Justice in Windsurfing Chiemsee and Lloyds Schuhfabrik require BFR to establish that in consequence of their use between 1979 and 1997 the expression BACH FLOWER REMEDIES and the word BACH have to a significant proportion of the relevant class of persons sc the average consumer of such goods acquired a distinctive character in the sense of distinguishing such goods manufactured by BFR from the same or similar goods manufactured by other undertakings It is true that the questions referred by this court to the European Court of Justice in Philips v Remington might suggest that the principles to be applied are not as clear as I consider them to be But that court like Neuberger J did not have the benefit of the two decisions of the European Court of Justice in Windsurfing Chiemsee and Lloyds Schuhfabrik 48 Given that the formulation of the test is not necessarily the same as that applied by Neuberger J it is appropriate to consider the facts relied on by BFR in its attempt to persuade this court to arrive at a different conclusion The first is the expansion as demonstrated by the evidence of Mr Robert Nelson Wilson of the business of the Bach Centre and of BFR in flower remedy products from 1981 to 1989 and from 1991 when his company acquired the exclusive licence from the Bach Centre to 1996 an expansion by a factor of 10 in the former period and by a factor of 2 in the latter In all years in both periods the relevant business of the Bach Centre or of BFR dwarfed that of HHL As counsel for BFR emphasised all the marks used by BFR in both periods incorporated the word BACH Secondly BFR relied on the findings of the judge to which I have referred in connection with the first issue to the effect that in four cases a request by a customer for Bach Flower Remedies was treated by the shop assistant as a request for BFR s product and that notwithstanding their cross examination some retailers and members of the public continued to regard the expression and word as badges of origin 49 In my view these points are insufficient to justify a finding such as BFR seeks First use of a mark does not prove that the mark is distinctive Increased use of itself does not do so either The use and increased use must be in a distinctive sense to have any materiality Whilst omnibus surveys such as that carried out by NOP in 1997 are of limited value in the determination of the question of distinctiveness it is noteworthy that out of 9 600 people interviewed over five weeks only 30 were considered to be capable of giving evidence in support of the case of BFR Thus even as a witness gathering exercise it was hardly successful But this is not surprising given the judge s conclusion that in 1979 the

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