REGISTRATION-continued.

to lead to the word "Apple" or the words "Apple Brand being associated with the goods sold under it, and therefore was likely to deceive. The application was dismissed with costs. POMRIL, LD.'S APPLICATION, p. 181.

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5. Patented article. Vasogen." Refusal. Appeal. Motion to remove Vaseline." Öld mark. Distinctive word. Order made to remove Vaseline." Registration of "Vasogen refused. Trade Marks Registration Act, 1875, section 10. An application having been made for the registration of "Vasogen as a Trade Mark in Class 3 for chemical substances prepared for use in medicine and pharmacy, the Comptroller required the Applicant to obtain the consent of the registered proprietors of the Trade Mark "Vaseline," which had been registered as an old mark in 1877 in Classes 3, 4, 47, and 48 for certain goods including "Vaseline," six years' user being claimed, and, such consent not being obtained, he refused the application. The Applicant appealed, and the appeal was referred to the Court. The Applicant moved to remove the Trade Mark "Vaseline" from the Register on the ground that the word at the date of registration denoted petroleum jelly filtered through animal charcoal, and not the goods of any particular firm. He relied particularly on the use of the words in certain Patents taken out by the predecessor of the registered proprietors and in the application for registration. The proprietors alleged that the word indicated goods of their manufacture.-Held, that at the date of registration the word "Vaseline" indicated petroleum jelly as manufactured by a particular process, which had been protected by Patents, and that it accordingly was not distinctive within the meaning of section 10 of the Trade Marks Registration Act, 1875. The Register was ordered to be rectified by the removal of the Trade Mark "Vaseline." The appeal as to " Vasogen" was refused for similar reasons. Linoleum Manufacturing Co. v. Nairn (L.R. 7 Ch. D. 834) followed. CHESEBOROUGH MANUFACTURING Co.'s TRADE MARKS; PEARSON'S APPLICATION, p. 191.

R.S.C. Order XXV., r. 4. RIPLEY v. ARTHUR & CO., p. 82.
Order L., r. 4. LONDON GENERAL OMNIBUS Co. v. LAVELL, p. 74.

SECONDARY MEANING. See PASSING OFF, No. 5.

TRADE LIBEL.

Alleged untrue statement. Alleged malice. Injunction granted at trial. Appeal by Defendants. Admissibility of evidence to explain meaning of document. Construction of document. Appeal allowed. Appeal to House of Lords. Appeal dismissed. In 1897 two Trade Marks, registered by the R. Company, of New York, were expunged from the Register of Trade Marks by the Order of the Court, at the instance of W., C. & Co. Both Trade Marks were labels containing prominently the words "Royal Baking Powder." Shortly afterwards W., C. & Co. issued a circular referring to the said Order, which circular, and the statements of travellers and agents of W., C. & Co., were alleged by

TRADE LIBEL-continued.

the R. Company to be an intimation that the R. Company were not entitled to sell baking powder as "Royal Baking Powder," and that W., C. & Co. intended to proceed against persons using the labels to stop the use of those words. The R. Company commenced an action to restrain W., C. & Co. from representing that the Plaintiffs were not entitled to sell their "Royal Baking Powder" in the United Kingdom, and from maliciously threatening the customers of the Plaintiffs with legal proceedings in respect of their sales of the Plaintiffs' said baking powder. It was held at the trial, that the circular represented what was not true with regard to the Plaintiffs' baking powder and trade, and was issued not in good faith in support of a claim or right really made or intended to be exercised by the Defendants, but maliciously, and had caused special and substantial damage to the Plaintiffs. An injunction was granted in the terms of the first part of the writ, and an inquiry as to damages was also granted, with costs up to and including judgment; the costs of the inquiry were reserved. The Defendants appealed.-Held, on appeal, that there being no circumstances to suggest that the circular had a secondary meaning evidence to explain its meaning was inadmissible, and that the circular did not mean that the Defendants intended to proceed against persons selling the Plaintiffs' baking powder under the name Royal "Baking Powder," and that the circular was not in any respect untrue. The appeal was allowed with costs in both Courts, the costs of the inquiry to be costs in the action. The Plaintiffs appealed to the House of Lords, who dismissed the appeal with costs.-Held, by LORD DAVEY, that the statements in the circular were untrue, and were made maliciously with the intention to prevent the sale of the Appellants' goods under the name "Royal," or any combination containing that word, but that the Plaintiffs had failed to prove any special damage resulting from the circular.— Held, by LORD JAMES and LORD MORRIS, that the Plaintiffs had failed to prove either express malice or special damage.-Held, by LORD ROBERTSON, that the circular was issued maliciously, but that the Plaintiffs had only proved a cessation of an illegal sale, which could not be held to be legal damage. HALSBURY, L.C., concurred, while differing from some of the reasons of some of the noble Lords. ROYAL BAKING POWDER Co. v. WRIGHT, CROSSLEY & Co., p. 95.

TRADE MARKS REGISTRATION ACT, 1875.

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Section 10. CHESEBOROUGH MANUFACTURING Co.'s TRADE MARKS ; PEARSON'S APPLICATION, p. 191.

TRADE NAME. See also PASSING OFF.

1. "Big Tree Brand" applied to wine. Injunction against offering or selling wine not the Plaintiffs' under the name "Big Tree "Brand." Liability of a Corporation for the acts of its servants. A Plaintiff Company's wine and no other being known as "Big Tree "Brand" they brought an action against an Hotel Company for an injunction to restrain them from offering for sale or selling other wine as "Big Tree Brand." It was proved that the Defendants' waiters on many occasions when "Big Tree Brand" wine was

TRADE NAME-continued.

ordered at the Defendants' restaurants tendered other wines, and when the question was raised asserted that they were that brand. -Held, that it was no defence that the waiters had been told that they should not do anything of the sort, and that they were acting contrary to their order; that the Defendant Corporation was responsible for the misrepresentations of its waiters; and an injunction was granted. GRIERSON, OLDHAM & Co., LD. v. BIRMINGHAM HOTEL AND RESTAURANT Co., LD., p. 158.

2. Action by Limited Company. Non-compliance with Companies Act, 1862, section 41. Injunction granted. A person named A. Talmey, having carried on business at certain premises as "Talmey & Co.," assigned the premises and goodwill to G., who assigned them to a Limited Company, of whose registered name "Talmey" formed no part. The Company continued to carry on the business as "Talmey & Co.," although their own name was placed over the door of the premises. The Defendants, having commenced to trade as "Thompson, Talmey & Co.," the Company commenced proceedings against them to restrain them from using the name "Talmey" without clearly distinguishing their business from the Plaintiff's' business and for other relief, and they moved for an interlocutory injunction. The Defendants alleged that, the Plaintiffs having used the name "Talmey & Co." without their registered name on their bills and customers' weekly books, were precluded from suing, as they had by so doing contravened section 41 of the Companies Act, 1862.-Held, that the contravention by the Plaintiffs of section 41 of the Companies Act, 1862, constituted no defence, and that the Defendants had fraudulently attempted to get the benefit of the name of "Talmey." An injunction was granted. Wright v. Horton (L.R. 12 App. Cas. 371) followed. The Defendants appealed, but after some argument the case was settled. PEARKS, GUNSTON & TEE, LD. v. THOMPSON, TALMEY & Co., p. 185.

3. Injunction granted to restrain a person from carrying on business in certain goods under his own name. Leave to Defendant to move for inquiry as to damages arising from an interlocutory injunction. J. and J. Cash, Ld., and their predecessors, Messrs. J. and J. Cash, had for many years manufactured and sold at Coventry "Cash's Frillings," "Cash's Woven Names," and "Cash's Woven Initials," and those terms meant their goods. Joseph Cash commenced to carry on business also at Coventry under the name of "Joseph Cash & Co.," and also manufactured and sold frillings and woven names and initials, but did not call them "Cash's Frillings," &c. He had also registered a Company under the name of "Joseph Cash, Ld.," to carry on a similar business. J. and J. Cash, Ld., brought an action against Joseph Cash claiming an injunction to restrain him carrying on business in the three articles named under the name of "Cash," and for other relief.-Held, that the Defendant could not carry on business in the three articles under the name of "Joseph Cash & Co." or that of "Cash" without such articles being called or known by the names by which the Plaintiffs' articles were known. An injunction was granted restraining the Defendant from carrying on the business of a manufacturer or seller of frillings or woven

TRADE NAME-continued.

names or initials under the name of "Joseph Cash & Co.," or under the name of " Cash," or under any name so as to mislead; also from making over any business in those articles to any Company having a name calculated to deceive, and to restrain the Defendant from soliciting customers of the Plaintiffs, with the costs of the action. The Defendant contended that an interlocutory injunction, which had been granted, had exceeded the terms of the injunction granted at the trial, and asked for an inquiry as to damages, but the Defendant having become bankrupt, and having offered no proof of damage, no inquiry was directed, but an Order was made giving him liberty to apply for such an inquiry. J. & J. CASH, LD. v. CASH, p. 213.

4. English Company registered in a name similar to that of a French Company. Action by French Company against such English Company and the seven persons who signed the Memorandum of Association. English market. Relief granted against Defendant Company and also against the seven signatories individually. An English Company having been registered in a name similar to that of a French Motor Car Company, who had, at the commencement of the action, no place of business in England, but whose goods sometimes were imported by purchasers abroad, the French Company brought an action against the English Company and the seven persons who signed the Memorandum of Association for (1) an injunction to restrain the Defendants from using the names P. and L., or either of them, or any other name colourably resembling the name of the Plaintiffs in connection with the manufacture or sale of motor cars; (2) an injunction to restrain the Defendants, the signatories, from allowing the Defendant Company to remain registered under its present name; (3) damages and costs.-Held, that the Plaintiffs were entitled to relief, with costs against the Defendant Company and also against its co-Defendants. LA SOCIÉTÉ ANONYME DES ANCIENS ÉTABLISSEMENTS PANHARD ET LEVASSOR v. PANHARDLEVASSOR MOTOR CO., LD. AND OTHERS, and LA SOCIÉTÉ ANONYME DES ANCIENS ETABLISSEMENTS PANHARD ET LEVASSOR v. PANHARD Co., LD. AND OTHERS, p. 405.

5. "Globe Furnishing Company." Injunction against Defendant in Dublin using name of Plaintiff's business in Liverpool.Proof of actual fraud or of customers having actually been misled not necessary.-Delay in taking proceedings.-Stay of six weeks to enable Defendant to make necessary arrangements. G., who had carried on business at Liverpool as the "Globe Furnishing Company," which business had been carried on under that name for over 14 years, brought an action against L., who had been for at least 18 months carrying on a similar business in Dublin under the name of "Globe Furnishing Company," to restrain his use of that name. G. advertised extensively in newspapers &c., some of which circulated in Ireland. There was no evidence of actual deception beyond that of certain persons who had mistaken the Defendant's business for a branch of the Plaintiff's business. It was not proved that the Defendant was aware of the Plaintiff's use of "Globe Furnishing "Company" when he adopted the name; but the Court inferred that he was aware that there was a concern in Liverpool called the

TRADE NAME-continued.

"Globe Furnishing Company."-Held, that the Plaintiff was entitled to an injunction with costs; but that, having regard to the unexplained delay of the Plaintiff in commencing proceedings, the injunction should be stayed for six weeks to enable the Defendant to make the necessary alterations in his way of carrying on business. GRANT v. LEVITT, p. 361.

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The

6. Trade Name attached to Premises. "Castle Brewery, Edinburgh." Sufficient distinction. Interdict refused. Complainers, Messrs. Cooper & M'Leod, after 1875, when their business was established, carried on the business of brewers and maltsters at the "Castle Brewery, Edinburgh." They never used "Castle Brewery" dissociated from their firm name. On the 29th of March 1900 the Respondents, Messrs. G. & J. Maclachlan, one of whom had started business as a wholesale and retail spirit merchant at Govan in 1872 in premises which he named the "Castle Vaults," opened a brewery at Duddingston, near Edinburgh, which they called "Castle Brewery, Edinburgh," and which they later designated "Maclachlans' Castle Brewery, Edinburgh," and sometimes "Mac"lachlans' Castle Brewery, Duddingston, Edinburgh." They had had a "Castle Brewery" at Maryhill, Glasgow, since 1888, and had not unfrequently there not used their own name on their advertisements and labels but trusted to "Castle Beer." In an action of suspension and interdict it was held, that both parties had the right to use "Castle Brewery" in the sale of beer; that there was no proof that the Respondents' beer had been mistaken for the Complainers' or that the Complainers' trade had been interfered with by the Respondents; that there was no ground for apprehending that the public would be misled or the Complainers injured by what the Respondents had done; and that there was no probability of confusion between the Trade Marks of the parties. Interdict was refused. COOPER & M'LEOD v. MACLACHLAN, p. 380. 7. Company. Name. Registration of new Company with name so nearly resembling that of Plaintiff Company as to be calculated to deceive. Companies Act, 1862, section 20. Admissibility of evidence. The Daimler Motor Car Co. brought an action to restrain the Defendants from registering a Company under the name of the " Daimler Wagon Co., Ld.," or any other name so nearly resembling that of the Plaintiff Company as to be calculated to lead to deception. The Plaintiffs relied on section 20 of the Companies Act, 1862, and also on their common law right.-Held, that the Plaintiffs had failed to establish that the word "Daimler' was so identified with the Plaintiffs' goods as to cause confusion if used in the name of another Company. In an action to restrain the registration of a Company with a name so nearly resembling that of an existing Company as to cause confusion, evidence is admissible for the purpose of ascertaining how the existing Company has used its name and what, by reason of its connecting that name with its goods, the public have come to attribute to that name. DAIMLER MOTOR CAR Co., LD. v. BRITISH MOTOR TRACTION CO., LD., p. 465.