TRADE NAME-continued. 1906, the Company went 66 as she alleged, she had become known in carrying on the business and which she had assumed by Deed Poll in June 1906. The Defendant alleged that the Plaintiff's had falsely represented that she was connected with the Plaintiff Company, and had thereby disentitled themselves to relief by way of injunction. A Motion for an interlocutory injunction was, as to the use of the name "Pomeroy," dismissed by Buckley J., an undertaking being given as to some other part of the relief claimed, but Sutton J. subsequently, on further materials, granted an interlocutory injunction as to the use of the name, and, on an appeal by the Defendant from that Order, it was not altered, an early trial being arranged. Before the hearing of the appeal, the Plaintiff's gave notice of Motion to commit the Defendant for breach of the injunction and undertaking, but this Motion was refused by Warrington J. At the trial no relief was ultimately claimed as to the charge of soliciting former customers.Held, that the Deed alleged to have been lost had been executed by the Defendant (although she believed that she had not done so), but that, even if it had not, the terms of the contract made by the Defendant with the first Company were those contained in the draft conveyance, and, having been acted upon by the parties, were binding upon the Defendant; that in 1896 the Defendant's name was not for all practical purposes" Pomeroy," but that, even if it had been, she had by contract precluded herself from using the name in any business that might compete with the business sold; and that the Plaintiffs had not by their conduct disentitled themselves to an injunction. The injunction claimed was granted as to the use of the name and as to inducing the belief that the Defendant was connected with the business of the Plaintiffs, an undertaking being given by the Defendant as to certain other matters. The costs of the action were given to the Plaintiffs, the costs of the Motion to commit being ordered to be set off. MRS. POMEROY, LD. v. SCALÉ, p. 177. 3. Name used by the Defendant descriptive of the articles dealt in and not calculated to deceive.-Alleged representations of agency.-Action dismissed.-Evidence. F. W. T., who had been agent in Cardiff of the National Cash Register Co. Ld., upon leaving their service, commenced business as the Cash Register Co. in the same F TRADE NAME-continued. street, and by his notices and advertisements offered to sell and did sell (among other cash registers) National Cash Registers. The National Cash Register Co. Ld. brought an action alleging that T. had by certain statements and acts made representations of agency and that his business was the business of the Plaintiffs or a branch or agency of the Plaintiffs, and alleging that his carrying on business under the title of the Cash Register Co. in conjunction with the facts alleged was calculated to deceive the public, and claimed an injunction.-Held, that the Defendant was entitled to trade as the Cash Register Co., and that he had not represented himself as agent or his business as the business of the Plaintiffs or a branch or agency of the Plaintiffs. Judgment was given for the Defendant with costs. J. and J. Cash Ld. v. Cash (19 RP.C. 181), discussed and distinguished. NATIONAL CASH REGISTER Co. LD. v. THEEMAN, p. 211. 4. Name which at one time indicated a type of motor car held to have acquired a secondary meaning.-Name of Defendant Company whether calculated to decere.-Meaning of "Daimler.”—Alleged secondary meaning held not to be established.-Action dismissed.Appeal by Plaintiffs allowed.-Form of injunction. The Daimler Motor Co. (1904) Ld. commenced an action to restrain a Company which had been recently registered under the name of the London Daimler Co. Ld. from using the word "Daimler" either in its name or in connection with motor cars. In an action brought in 1901 by the predecessors of the Plaintiff Company it was held that the word "Daimler" indicated a system, and that a "Daimler" motor indicated a certain form of motor; but the Plaintiffs alleged that that word had since acquired a secondary meaning indicating the Plaintiff Company and its cars. About 37 per cent. of the Plaintiffs' sales were effected in London, where they had show rooms. It did not appear what name the Defendants were going to give to their cars, but in a letter they said that their cars would be known as the "London Daimler," whereas the Plaintiffs were of Coventry. It was held at the trial, that the alleged secondary meaning of the word "Daimler" was not established, even only in connection with English cars; that the evidence showed that the name of the Defendant Company could be honestly used without suggesting connection with the Plaintiff Company; and that as to the cars there was no evidence as to the name which the Defendants intended to give to them. The action was dismissed with costs (23 R.P.C. 718). The Plaintiffs appealed.Held, that the word " Daimler" no longer indicated a type or system of motors, and that the name London Daimler Co. Ld. was calculated to deceive and to cause confusion between the two Companies, and that the Plaintiff's were entitled to an injunction as to the name of the Defendant Company, although not in so wide a form as that claimed. The appeal was allowed with costs of the appeal and below, except that the Plaintiffs were only given half the costs of the evidence. DAIMLER MOTOR CO. (1904) LD. v. LONDON DAIMLER CO. LD., p. 379. 66 5. The principles applicable to trade name considered.-DAIMLER MOTOR CO. (1904) LD. v. LONDON DAIMLER CO. LD., p. 379. 66 6. A new Company, with a title of which the name A❞ forms part, has none of the natural rights that an individual born with the name "A" would have. An individual named "A," not transferring to a Company a business and goodwill, cannot 66 TRADE NAME-continued. confer upon the Company a title to use his name as against persons who would be damaged thereby.-Company-Similarity of names.-Right of individual to use own name.-Transfer of name by individual to Company.-No antecedent business transferred.-No goodwill transferred.-Possibility of confusion.-No fraud.--Injunction. A business of John Cash & Sons was in 1898 sold to a Limited Company, and thenceforth carried on under the style of John Cash & Sons Ld. John Harwood Cash, the manager of the business before 1898, remained manager of John Cash & Sons Ld. until April 1906, when he left the employment of the Company. In June 1906 John Harwood Cash joined with other persons in promoting and became an original director of a Company having the same objects as John Cash & Sons Ld., and carrying on business in the same neighbourhood, which was registered under the name of Harwood Cash & Co. Ld. In an action to restrain the use of this name by the new Company, it was held on Motion for an interlocutory injunction that the Court was not then in a position to try the questions raised, and, there being no great urgency in the matter, the Motion was refused. The action came on for trial with witnesses.-Held, that an injunction should be granted to restrain the use of its corporate name by the new Company on the ground that its use would probably lead customers of the old Company into confusion between the Companies, and mislead them into going to the new Company when they intended to go to the old. Tussaud v. Tussaud (L.R. 44 C.D. 678) followed. FINE COTTON SPINNERS AND DOUBLERS' ASSOCIATION LD. AND JOHN CASH & SONS LD. v. HARWOOD CASH & Co. LD., p. 533. 7. The use by the Defendants of the same descriptive name as the Plaintiffs' and of shop-dressing of a similar character held not under the circumstances calculated to deceive.-Descriptive name.-Secondary sense.-Passing off-Retailers in different districts. --Tendency to deceive.-Circumstances where proof of fraud held to be insufficient.-Turpis causa.-False statement in the Complainers' advertisements held, even if false, not to amount to such misrepresentations as would make the Complainers' a fradulent trade.M. P. and his four brothers (who were the Complainers in the action) were proprietors (in partnership) of 17 shops in England and one in Glasgow, at which they carried on a large business as retail dealers in shirts and collars under the trade name of the Irish Linen Company. The first of these shops was opened in March 1902. Previous to that date the name Irish Linen Company had been used by three different shopkeepers at Hove, Belfast, and the Isle of Man, in invoices, advertisements, &c., but not on the wrappers round the goods. The Complainers stated that they were manufacturers of shirts and collars. About May 1906 H. L. opened a shop in Edinburgh, where he did a retail business in shirts and collars under the name of the Irish Linen Company. This shop had a green signboard with gilt lettering, green window tickets, and a peculiar style of window dressing, all of which were common to all the shops of the Complainers, and, as they alleged, distinctive of them. It was proved that in two cases H. L.'s shop was mistaken for one of the Complainers'. The Complainers alleged that H. L. had acted fraudulently, but the Lord Ordinary held the proof of this to be insufficient. The Complainers having brought an action of interdict against H. L.,Held, that, in the Scotch market at least, the descriptive name Irish Linen Company had not acquired any secondary signification confining it to the business of the Complainers; that the use by a retailer in Edin TRADE NAME-continued. burgh of signboards, dressings, &c., in a certain style would not, in such a branch of trade as the present, be likely to mislead the public into thinking that his shop was a branch of another retailer's whose nearest shop was in Glasgow; and that the proof of fraud was insufficient. Interdict was refused. Observed by the Lord Ordinary."Even if the Respondent believed that custom could be attracted by a shop of the particular design which had attracted custom in Glasgow, "I do not think he would be doing anything illegitimate in employing "the same means, provided it was only to attract custom and not to "divert customers from the Complainers." The Respondent having argued that the Complainers were barred by alleged false statements in their advertisements from insisting in the present action, held that this was not a case where the reputation of the trade name was founded on false and fraudulent statements. Newman 'v. Pinto (4 R.P.C. 508), and Bile Beans Manufacturing Co. v. Davidson (23 R.P.C. 725; 8 F. 1181) distinguished. PLOTZKER v. LUCAS, p. 551. 8. Injunction refused on appeal, the Defendants using the surname of their predecessors in business, and the main objects of the companies being different.-Action to restrain the use of the the name "Dunlop."-Name of members and predecessors of Respondent Company "Dunlop."-Right to use own name.--Alleged misleading, deception, or confusion arising from the use of the name "Dunlop."-Interdict granted by the Lord Ordinary but refused by the Second Division.--Appeal to the House of Lords dismissed. From 1888 the Complainers, the D.P.T. Co. Ld. and their predecessors in title used the name " Dunlop" in connection with their goods-tyres for cycles, and other accessories for cycles and motors, such as pumps, inflators, &c. The name "Dunlop " hal become identified in the trade and amongst the public with the Complainers' tyres. From 1898 R. D. and J. F. D. carried on a retail business under the style of R. and J. F. Dunlop. They sold and repaired cycles and motors, but had no plant for making motors. 1904 the Dunlop Motor Co. Ld. was incorporated; R. D. and J. F. D. being the directors. It was incorporated to purchase and did purchase for a small sum the motor branch of the business of the firm. The business carried on by the Company was, as found by the Lord Ordinary, scarcely if at all different from that carried on by the firm, and the Company was not in a position to manufacture and had not attempted to manufacture one motor car, but they did deal in certain classes of goods and carry on certain lines of business in common with the Complainers. It was held, by the Lord Ordinary, in an action of suspension and interdict, that the name "Dunlop" having acquired a secondary meaning as descriptive of the Complainers' goods, and the Respondents' business, such as it was, being of the same or of a similar nature, the resemblance of the trade names was too close not to lead to confusion and possible deception; that while neither mala fides nor actual deception was proved, yet the purchase of R. D. and J. F. D.'s business and the floating of it as the D. M. Co. Ld. suggested other objects than those stated in their Memorandum of Association; and that in any case good faith, the absence of proof of deception, and the use by the Respondents of their own name formed no answer to the Complainers' case based on probable or possible confusion, misleading or deception. Interdict was granted substantially as craved, with expenses (22 R.P.C. 353). The Respondents reclaimed.-Held, by the Second Division of the Inner House, that there was no proof of probable confusion or deception of persons acting with reasonable care TRADE NAME-continued. and observation, the businesses being mainly in different goods; that the term "Dunlop tyres" was the proper and usual name of certain (formerly patented) articles which might be sold by all under such name; and that as regards articles other than tyres, the Complainers had acquired no exclusive right to the name "Dunlop"; also that there was no proof of mala fides. Observed that, in the absence of some overt act or course of course of conduct plainly indicative of a dishonest effort to pass off his goods as the goods of another, a merchant or manufacturer could not be debarred from selling his own goods under his own name. Valentine Meat Juice Co. v. Valentine Extract Co. (17 R.P.C. 673), if affirming or implying any broader proposition, doubted. The Lord Ordinary's interlocutor was recalled and interdict was refused, with expenses (23 R.P.C.761). The Complainers appealed to the House of Lords. The appeal was dismissed with costs. DUNLOP PNEUMATIC TYRE CO. LD. v. DUNLOP MOTOR COMPANY LD., p. 572. 9. Secondary meaning of descriptive name not established.-Action to restrain use of "Vacuum Cleaner as part of name.-" Vacuum Cleaner" name of class of machine used by Plaintiffs and Defendants. -Probability of deception not established.-Action dismissed. In 1902 a Company, the Vacuum Cleaner Co. Ld., was formed to work, under a Patent granted in 1901 and purchased by the Company, a process of cleaning carpets and other articles by means of a vacuum. The British Vacuum Cleaner Co. Ld., which was formed in 1903, took over the undertaking of the first-named Company, and advertised widely and acquired a large business. They were interested in numerous subsidiary Companies working the process under licences. The business of each subsidiary Company was restricted to a particular area, and the name of each subsidiary Company contained the words "Vacuum Cleaner" with a territorial qualification. In October 1906 the New Vacuum Cleaner Co. Ld. was formed to work, under a Patent granted in 1904, a process of cleaning by vacuum. They took business premises close to premises of the British Vacuum Cleaner Co. Ld., who brought an action to restrain them from using the words "Vacuum Cleaner" as part of their name. The Plaintiffs allege that they, the Plaintiffs, had become known to the public as the "Vacuum Cleaner Co." The Defendants alleged that the words objected to were descriptive of the class of machine and process used by both themselves and the Plaintiffs, that the words had not acquired any secondary meaning of the Plaintiffs' machine, process, or business, and that, used in conjunction with the word "New," they were not calculated to deceive. At the trial the Plaintiffs proved that confusion of the two Companies had arisen in three instances; they alleged that the Defendants had induced two of the Plaintiffs' employees to enter the Defendants employment.-Held, that a scheme or design by the Defendant Company to take unfair advantage of the Plaintiff Company by the adoption of the name New Vacuum Cleaner Co. was not proved; and that no deception would occur. The action was disinissed with costs. Cellular Clothing Co. v. Maxton (16 R.P.C. 397; L.R. (1899) A.C. 326) followed. Aerators Ld. v. Tollitt (19 R.P.C. 418; L.R. (1902) 2 Ch. 319) discussed. BRITISH VACUUM CLEANER CO. LD. v. NEW VACUUM CLEANER CO. LD., p. 641. 10. Defendants, who traded in Anglo-American shoes, held entitled to call themselves the Anglo-American Shoe Co.-The" American Shoe Co."-The "Anglo-American Shoe Co."-Name used by Defendants held not to be calculated to deceive.-Action dismissed.-Appeal |