COSTS.

1. Motion to rectify the Register. The proprietor of a Trade Mark registered for goods in which he did not trade, ordered to pay the costs of a motion to rectify the Register by excluding certain goods from the registration, although he did not oppose it, but had refused his consent to the Applicants' Application to register their mark. IN THE MATTER OF HARE'S TRADE MARK, p. 263.

2. In a Trade Name case in which the Plaintiffs succeeded on appeal, they were given the general costs of the action and the costs of the appeal, but as the Plaintiffs' case had been overlaid with unnecessary evidence, and they had claimed more than they were entitled to, they were given only half the costs of the evidence. DAIMLER MOTOR CO. (1904) Ld. v. LONDON DAIMLER CO. LD., p. 379.

3. Registrar's Costs. The Registrar, being a public official occupying a fiduciary position, held to be entitled to his costs on an appeal to the Court, unless he has done anything to disentitle him to them, and the fact that he is held to have misconstrued a section of the Act, and his decision is reversed, is not sufficient reason for depriving him of costs. IN THE MATTER OF THE BIRMINGHAM SMALL ARMS Co.'s APPLICATION, p. 563.

4. Registrar's Costs. Registrar held to be entitled to his costs on an application referred to the Court under Section 9 (5) of the Trade Marks Act, 1905. IN THE MATTER OF AN APPLICATION TO REGISTER "APOLLINARIS AS A TRADE MARK, p. 436.

5. Registrar's Costs. Registrar held to be entitled to his costs, although his decision was reversed on appeal, there being no special circumstances. IN THE MATTER OF SHAMROCK & Co.'s APPLICATION, p. 569.

6. Rival claims to registration. Mark proved to be publici juris. Where two Applicants had applied for registration of the same Trade Mark and the Registrar refused to proceed with either registration until the rights had been determined by the Court, and one of the Applicants applied to the Court for an Order that the registration of his Trade Mark might proceed notwithstanding the other application, and at the hearing it was proved that the mark was common to the trade, no costs were given to either party, but the Applicant was ordered to pay the costs of the Registrar. IN THE MATTER OF HUDSON'S APPLICATION, p. 582.

DAMAGES.

Where unsuccessful Defendants offered a sum by way of damages. an inquiry as to damages was ordered, with the offer of the sum recited in the Order. IRON-OX REMEDY CO. LD. v. LEEDS INDUSTRIAL CO-OPERATIVE SOCIETY Ln., p. 434.

DECEPTION (PROBABILITY OF). See REGISTRATION, Nos. 1, 4, 6; INFRINGEMENT; PASSING OFF; and TRADE NAME.

1. When a mark is held to be disentitled to registration under Section 11 of the Trade Marks Act, 1905, Section 21 cannot be applied. IN THE MATTER OF THE APPLICATION OF THE COMPAGNIE INDUSTRIELLE DES PETROLES, p. 585.

DECEPTION (PROBABILITY OF)-continued.

2. Probability of deception where confusion is intended. "If the "conclusion is once arrived at that the description was adopted not "with the object of fairly describing the goods to which it is applied, "but with the object either of actually misleading the public, or taking "an undue advantage of the business connection, or the expenditure, "of a rival trader, it does not, I think, require much further evidence "to justify the conclusion that the public is likely to be misled; and, "on the assumption that the goods are so described as to be likely "to mislead the public, it is not necessary to prove that anyone has "been actually deceived or misled; and, therefore, further, the person "who supplies the goods with the misleading description may be liable "to an injunction, even though the class of persons to whom he supplies "them are certain to know what the goods are, and are not themselves likely to be in any way misled."-Per PARKER J. in IRON-OX REMEDY CO. LD. v. CO-OPERATIVE WHOLESALE SOCIETY LD., p. 425.

DESCRIPTION OF GOODS.

Lubricating oil and petrol spirit. What are "such goods or description of "goods" within Section 19 of the Trade Marks Act, 1905, considered. IN THE MATTER OF AN APPLICATION OF THE COMPAGNIE INDUSTRIELLE DES PETROLES, p. 585.

DESCRIPTIVE WORD.

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"I do not think it proves that a word is not descriptive because from the description alone you could not possibly either make the article or "form an absolute and definite conclusion as to what shape or character "the article would take." Per NEVILLE J., IN THE MATTER OF GESTETNER'S TRADE MARK, p. 548.

DISCRETION OF THE REGISTRAR. See REGISTRATION, No. 3.

DISTINCTIVE MARK.

Meaning of "distinctive" in Section 9 of the Trade Marks Act, 1905, considered. IN THE MATTER OF AN APPLICATION TO REGISTER "APOLLINARIS" AS A TRADE MARK, p. 436.

EVIDENCE.

1. In an infringement action evidence of actual deception is not necessary, nor is evidence of trade experts that the alleged infringement is calculated to deceive necessary. HENNESEY & Co. v. KEATING, p. 485.

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2. The question being whether the goods of the Defendants bearing the letters B.A.S. were liable to be confused with goods of the Plaintiffs bearing the letters B.S.A., the Judge stated "the way it strikes the "individual mind of the Judge is of importance, and it is also 'important that the Judge should have evidence to confirm his "impression and the conclusion he comes to on the point whether or "not he thinks, on a comparison of the way the letters are used by "the rival traders, having regard to the surrounding circumstances, "confusion might arise." BIRMINGHAM SMALL ARMS Co. LD. v. WEBB & CO., p. 31.

EVIDENCE-continued.

3. Evidence given at trial, without objection, by Defendant in a passing-off case, outside his Particulars of user, of a name for cycles, &c., treated as admissible by Court of Appeal. STAR CYCLE Co. LD. v. FRANKENBURGS, p. 405. See PASSING OFF, No. 3.

FANCY WORD NOT IN COMMON USE.

IN RE

"Cyclostyle" held not to be a fancy word not in common use. GESTETNER'S TRADE MARK, p. 545. See RECTIFICATION, No. 2.

INFRINGEMENT.

1. The general features of the Plaintiffs' label taken, but not his name or a certain device. The Defendant's label held calculated to deceive, although the Plaintiffs called no experts on this point.-Degree of resemblance.-Probability of deception a question to be decided by the Court upon inspection and comparison.-Evidence of actual passing off, or that the infringing mark is calculated to deceive, not necessary.-Injunction granted. H. & Co., distillers of brandy at Cognac, had registered as a Trade Mark a label, which they affixed on bottles containing brandy of their manufacture, consisting of a body label square in shape, printed in gold on a white ground, in the centre of which was their name, with the word "Cognac," surrounded by a border (also printed in gold) of vine leaves and grapes in the form of a garland tied at the base with a ribbon, and surmounted by a mailed arm and hand grasping a battle-axe. The Defendant sold brandy, not of the Plaintiffs' manufacture, in bottles bearing a label of the same size and shape, also printed in gold on a white ground, and surrounded by a garland of vine leaves and grapes, closely resembling the Plaintiffs' label; but, instead of the name "H. & Co." and the word "Cognac," the Defendant's label had in the centre the words "Celebrated Old "Brandy," without any maker's name. The mailed arm and hand grasping a battle-axe were not reproduced in the Defendant's label. No evidence was given of actual deceit, and no witnesses were produced by the Plaintiffs to prove that purchasers would be likely to be deceived. The Defendant called a number of witnesses, who stated that in their opinion the label was not calculated to mislead.-Held, that evidence of experts on behalf of the Plaintiffs as to whether the label was calculated to deceive was unnecessary; that the Plaintiffs were entitled to rely upon the similarity of the labels, and the action and conduct of the Defendant, as demonstrating that he used the label with the intention of palming off upon unwary customers another brandy as that of the Plaintiffs; and the Judge being of opinion, upon inspection and comparison of the labels, that the one used by the Defendant was calculated to mislead an incautious or unwary purchaser, an injunction was granted. HENNESSY & Co. v. KEATING, p. 485.

2. Similarity of marks. "Now I say, in this case, if one man will use a "label similar to the label of another, whose label has been duly "registered, or will use a label resembling it, he must use it under "such circumstances, and with such sufficient precautions, that the "reasonable probability of error shall be avoided, notwithstanding the "want of care and caution which is so commonly exhibited in the course of human affairs.' Per MEREDITH M.R. (Ireland) in HENNESSY & Co. v. KEATING, p. 500.

INFRINGEMENT-continued.

3.." Cat and Barrel" marks held to infringe a registered "Cat and Barrel" mark although differing in the manner in which the idea was carried out. BOORD & SON V. THOM AND CAMERON LD., p. 697. See RECTIFICATION, No. 4.

INTERLOCUTORY INJUNCTION. See PASSING OFF, No. 6; TRADE NAME, No. 6.

INVENTED WORD.

"Cyclostyle" held not to be an invented word, being the name of a patented article. IN RE GESTETNER'S TRADE MARK, p. 545. See RECTIFICATION, No. 2.

LEGAL INJURY. See TRADE NAME, No. 1.

LOCAL USER. See PASSING OFF, No. 3.

MISREPRESENTATION.

1. An Applicant for registration of a Trade Mark had issued catalogues containing a statement that the Trade Mark was registered. In an opposition the Registrar, having heard the explanation of the Applicants, held that, although the statement was misleading, registration ought not, under the circumstances, to be refused, and his decision was upheld by the Court, and, on appeal, by the Court of Appeal. IN THE MATTER OF AN APPLICATION BY LYLE & KINAHAN LD., pp. 37 and 249.

2. Alleged misrepresentation by Plaintiffs in passing-off action. PLOTZKER v. LUCAS, p. 551.

NAME. See also TRADE NAME; PATENTED ARTICLE.

1. Name of picture gallery. BOUSSOD, VALADON & Co. v. MARCHANT, p. 665. See TRADE NAME, No. 11.

2. Right to use of assumed name. See TRADE NAME, No. 2,

OPPOSITION. See also REGISTRATION.

POMEROY LD. v. SCALE, p. 177.

A Trade Mark applied for will be considered, for the purposes of an opposition, in the form in which it is proved to be intended to be used. IN THE MATTER OF AN APPLICATION BY LYLE KINAHAN LD., pp. 37 and 249. See REGISTRATION, No. 1.

PASSING OFF.

1. The letters B.S.A. having become associated with the Plaintiffs' goods, the letters B.A.S. used by the Defendants were held to be calculated to deceive.-B.S.A. identified with Plaintiffs.

PASSING-OFF-continued.

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Use of B.A.S. by Defendants.-Injunction granted. The Birmingham Small Arms Co. Ld. manufactured and sold cycle parts and accessories (including spanners) and put upon them the letters B.S.A., and these letters had become associated with the Company and its goods. On its spanners, however, the letters did not appear alone, but in conjunction with a Trade Mark consisting of three piled rifles. The Company brought an action for passing off against a firm which had made spanners with the letters B.A.S. on them, meaning, as they said, Best All-round Spanners." They had discontinued so doing before action, but claimed a right to do so. It was contended for the Defendants that the articles could not be mistaken when compared; that there was no evidence that the Plaintiffs' spanners were ordered as B.S.A. spanners; and that there was no probability of confusion. No actual deception was proved.-Held, that, although no deliberate intention to deceive had been established, the letters B.A.S. were calculated to cause the Defendants' goods to be confused with the Plaintiffs'. An injunction was granted with liberty to apply as to delivery up, and the Defendants were ordered to pay the costs of the action. BIRMINGHAM SMALL ARMS Co. LD. v. WEBB & CO., p. 27.

2. "Lanco" held not to be liable to be confused with "Lanca66 shire," the goods being different.-Name used by the Defendants whether calculated to deceive.-Motion to expunge Defendants' Trade Marks.-Allegation of fraud abandoned at trial.-No probability of deception found.-Action and motion dismissed.-Appeals dismissed. Prior to the year 1870 and subsequently a Company and their predecessors manufactured and sold hair belting for machine driving under the naine of "Lancashire Belting" or "Lancashire Patent "Belting," and used in connection with the sale a Trade Mark consisting of the words "The Lancashire" registered in 1885 as an old mark. The Company also sold, but did not manufacture, Balata belting. In 1901 the Plaintiffs acquired the business of the Company. The Plaintiffs sold hair belting under the name of "Lancashire Belting," bnt did not use that name in connection with their sale of Balata belting. In 1905 the Defendants began to manufacture Balata belting, which they sold under the name of "Lanco Belting," and in the same year they registered two Trade Marks, one consisting of the word "Lanco and the other of the words "Lanco Balata Belting" with a device. The Plaintiffs commenced an action to restrain passing off, and moved to expunge the Defendants' Trade Marks. They alleged that their belting was known by various abbreviations of the word "Lancashire" resembling the name "Lanco," and that the use of that name was calculated and intended to deceive. The Defendants denied that their "Lanco Balata Belting" could be mistaken by purchasers for the Plaintiff's' "Lancashire" hair belting. At the trial, no actual deception was proved, the allegation of fraud was withdrawn, and the Defendants put in evidence a correspondence with the Registrar of Trade Marks on their application to register their Trade Marks, from which correspondence it appeared that the Defendants had originally applied to register the word "Lancomie (stated to be an abbreviation of "Lancashire Cotton made in England"), and that their adoption of "Lanco" instead of "Lancomie was in consequence of the correspondence with the Registrar.-Held, by Neville J., that the use of the name "Lanco" was not calculated to deceive (23 R.P.C. 621). The action and motion were dismissed with costs. The Plaintiffs appealed. The appeals were dismissed with costs. REDDAWAY & CO. LD. v. IRWELL AND EASTERN RUBBER CO. LD., p. 203.