ss 9–12 TRADE MARKS ACT (d) the Registrar is satisfied that that other person would be entitled to be registered as a registered user of the trade mark immediately after the registration of the trade mark; the Registrar may, for the purpose of determining whether the trade mark is distinctive of the goods or services of the applicant, treat the use of the trade mark by that other person as equivalent to the use of the trade mark by the applicant. (5) Notwithstanding anything to the contrary contained in this section, a distinguishing guise shall only be registrable in Part A of the Register if— (a) it has been so used in Zimbabwe by the applicant or his predecessor in title as to have become distinctive at the date of the application; and (b) the registration of that distinguishing guise, in relation to the goods concerned, is not likely to limit unreasonably the development of any art or industry. (6) A trade mark may be registered in Part A of the Register notwithstanding any registration in Part B of the Register in the name of the same proprietor of the same trade mark or any part or parts thereof. (7) An appeal shall lie from any decision of the Registrar under this section. 13 Capability of distinguishing requisite for registration in Part B (1) In order to be registrable in Part B of the Register, a trade mark shall be capable, in relation to the goods or services in respect of which it is proposed to be registered, of distinguishing goods or services with which the proprietor of the trade mark is or may be connected in the course of trade from goods or services in the case of which no such connection subsists, either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration. (2) In determining whether a trade mark is capable of distinguishing as mentioned in subsection (1), the Registrar may have regard to the extent to which, by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact capable of so distinguishing or is capable of becoming distinctive as referred to in section twelve. (3) Where— (a) an application has been made for the registration of a trade mark in Part B of the Register; and (b) before the date of the application the trade mark was used by a person other than the applicant in the circumstances referred to in paragraph (b) of subsection (4) of section twelve; and (c) an application has been made by the applicant and that other person for the registration of that other person as a registered user of the trade mark; and (d) the Registrar is satisfied that that other person would be entitled to be registered as a registered user of the trade mark immediately after the registration of the trade mark; the Registrar may, for the purpose of determining whether the trade mark is capable of distinguishing as mentioned in subsection (1) the goods or services of [Chapter 26:04] the applicant, treat the use of the trade mark by that other person as equivalent to use of the trade mark by the applicant. (4) A trade mark may be registered in Part B of the Register notwithstanding any registration in Part A of the Register in the name of the same proprietor of the same trade mark or any part or parts thereof. 86