66 Hennessy & Co. v. Keating. the absence of evidence of deception, I refer to the London General Omnibus Company v. Lavell (18 R.P.C. 79; L.R. (1901) 1 Ch. 138), and Payton & Co. Ld. v. Snelling, Lampard & Co. Ld. (17 R.P.C. 635). The remarks of Lord Macnaghten in the latter case were applicable in the present case—(1) 5 The Defendant did not pass off, or attempt to pass off, his goods as the goods of the Plaintiffs; (2) no human being had been deceived; there was not a single instance of any person wishing to buy Hennessy's brandy buying "Celebrated "Old Brandy" instead, through any mistake of any sort; (3) as regards the Plaintiffs' goods, the title and denomination they had acquired was that of 10 Hennessy's Cognac Brandy," while, as regarded the Defendant's goods, if they had acquired, or should acquire, a title in the market, it was the title of "Celebrated Old Brandy." The Defendant had acted with honesty and good faith. Asked for the "Celebrated Old Brandy," he sold it, believing he had a right to do so. When his attention was called to the label, although he protested 15 that there was no real similarity, and that it was not calculated to mislead, he offered to discontinue using it; and with regard to not having disclosed the name of the printer, the fact was he was unable to do so. He had found a number of these labels-about twenty-in a drawer, where they had been left by the former proprietor of his establishment, and he did not know the name 20 of the printer. He had only used them about a fortnight, and did not think there was anything objectionable in them. I also rely on Mitchell v. Henry (L.R. 15 C.D. 151), and submit that the Plaintiffs have not discharged the burden of proof which lay upon them. A number of witnesses would prove that the label was not calculated or likely to deceive, and that although in some 25 respects it bore a certain resemblance to the Plaintiffs' label, the differences were such that even a child could not be misled by it. The Defendant, Matthew Keating, deposed that he had been in business since 1897. A person named M'Cabe had the establishment previously. Witness was in the habit of selling a good deal of Hennessy's brandy, and always sold 30 it in Hennessy's bottles, with their labels attached. Whenever asked for Hennessy's brandy, he always supplied the genuine Hennessy, and had never passed off, or attempted to pass off, any other brandy on a purchaser. He had a large framed show placard, depicting the Plaintiffs' label, hung up in à prominent part of his shop, where everyone could see it. [This placard was 35 produced.] He purchased the brandy, called "Celebrated Old Brandy," from Delont Freres, of Cognac, who were well-known shippers, and he put it into bottles, and labelled it with labels similar to the one produced. He did not know where the labels came from; they were in the house when he took it, and were found by his assistant lying in an old drawer along with a lot of other 40 labels, and he put them on the bottles and exposed them on a shelf for sale. He did so without any intention to deceive. Looking at the labels, he admitted there was some resemblance, but he did not believe any person could be misled. The customers who asked for brandy were a superior and more intelligent class of persons, and if they wanted Hennessy's brandy they would ask for it, would 45 look at the label for the name, and see that they got it. There were a number of bottles of Hennessy's brandy on the same shelf, and also Martell's. The name on the label was the chief thing; it was what customers looked to. Cross-examined.-He first began to deal with Delont Freres in 1905. The impeached labels must have been in his establishment when he got possession 50 of it ten years ago. He did not get them printed. His assistant found them in a drawer along with a number of whisky and porter labels, and he used them because they had "Brandy" on them. It was not till January 1906 that he used them. To the MASTER OF THE ROLLS.-Delont Freres supply labels free to their customers to put upon their brandy sold in stock, when bottled. 55 Notwithstanding that, I gave an order to Messrs. Hely for 500 labels. [Asked to explain this] the Defendant stated that at the time he gave the order to Messrs. Hely he did not know that Delont Freres would supply labels free. Hennessy & Co. v. Keating. He did not supply Messrs. Hely with any model or drawing, or label of any description, to give them an idea of what kind of label he wanted. Their traveller told him they kept them in stock. [A specimen of the label supplied by Delont Freres was produced. It was unlike the Plaintiffs' label.] Thomas O'Reilly, licensed vintner, Dorset Street, Dublin, chairman of the 5 Grocers and Vintners' Association, deposed that he was familiar both with Hennessy's label and the "Celebrated Old Brandy" label. They were both well known, and had been in common use in the trade for years. He did not think the "Celebrated Old Brandy" label was likely to mislead. A customer who wanted Hennessy's brandy would look for the name on the label. He found 10 in his experience that brandy is not usually drunk, as whisky and porter are, as a beverage. It is called for by a superior class of persons, sometimes medicinally, when they feel they want it. Ladies sometimes ask for it. Customers are keen in seeing that they get the kind of brandy they order. He did not believe they could be misled by the label. Cross-examined.-I sell Hennessy's brandy 15 myself, and also Martell's. I was in the habit some years ago of keeping in stock cheaper brandy, in bottles bearing the "Celebrated Old Brandy" label, but have latterly discontinued doing so. I sell only the best qualities of brandy now. Hennessy's and Martell's are considered the best. Hennessy's is more sold than Martell's. There are several establishments in Dublin that still 20 continue selling brandy in bottles with the "Celebrated Old Brandy" labels. [The witness was pressed to give the names of the establishments, but refused to do so.] In my opinion, the "Celebrated Old Brandy" label is an honest one. There is some resemblance between it and Hennessy's label, but it would not deceive me, and I do not think it would mislead any member of 25 the public. Thomas Gethings, licensed vintner, Dublin, ex-chairman of the Grocers and Vintners Association, said he was familar with both the Plaintiffs' label and the "Celebrated Old Brandy" label, but he had not seen the latter label in use in Dublin for six years past. Up to that date he had used it himself, but had 30 ceased doing so, as he heard it had been objected to. He did not think it was calculated to deceive a purchaser. There were marked differences between it and the Plaintiffs' label. The chief distinction between them was the absence of the name of Hennessy, but there were also other differences. Hennessy's label was a work of art; the other was clumsy. Brandy labels were usually 35 printed in gold on a white ground. Cross-examined.-In his opinion the "Celebrated old Brandy was a fair and honest label. The chief characteristics "of the Plaintiffs' label were the name of " Hennessy," and the hand and battleaxe. Their absence from the "Celebrated Old Brandy" label made it impossible that customers could be misled. 40 Patrick Joseph Murphy, traveller for Messrs. Cassidy, distillers, Monasterevan, deposed that he did not think the "Celebrated Old Brandy" label was calculated to mislead. On cross-examination, he admitted there were points of resemblance between the two labels, but the chief difference between them was the absence of the name. In his opinion that was decisive. What purchasers looked to 45 was the name of " Hennessy," and no label could deceive if the name was omitted. James Butler, mineral water manufacturer, Britain Lane, Dublin, said he had 24 years' experience of the licensed trade; and in his opinion the impeached label could not deceive any purchaser. The chief characteristic of the Plaintiffs' 50 label was the name, and in the absence of the name it was impossible that anyone could make a mistake. John Davin, alderman of Dublin, and proprietor of the "Ship Hotel and "Tavern," Lower Abbey Street, deposed that the use of a garland of vine leaves, as an ornament, on brandy labels was quite common in the trade, and had been 55 customary for many years. So also was the printing in gold on a white ground. In his opinion the "Celebrated Old Brandy" label was not likely to mislead, : Hennessy & Co. v. Keating. He attached great importance to the name of " Hennessy," and the hand and battle-axe, on the Plaintiffs' label, both of which were absent from the impeached label also to the absence of the neck label with the star or stars. He did not think the "Celebrated Old Brandy" label would mislead even an incautious 5 and unwary purchaser. Cross-examined.-The points he had mentioned were the most decisive; but there were also other differences between the labels. He admitted there was a resemblance between them, in shape, in being printed in gold on a white ground, in having a garland of vine leaves and grapes, in the ribbon knot at the base, and the heraldic bar. He admitted those five features 10 of resemblance, but in his opinion they were all counteracted by the fact that the name of Hennessy, and the hand and battle-axe, were absent. Thomas S. Russell, for many years manager of the "Phoenix Brewery Com"pany," deposed that he had from fifteen to twenty years' experience of the licensed vintner trade. White and gold labels, with garlands of vine leaves, 15 and grapes, were commonly used by brandy bottlers. The distinctive characteristics of the Plaintiffs' label were the name of "Hennessy," and the hand and battle-axe. Customers who wanted Hennessy's brandy usually asked for "a bottle of Hennessy," and looked for the name on the label. As this was absent, he did not believe the "Celebrated Old Brandy' " label would deceive 20 any purchaser. Cross-examined.-If I am standing a drink of brandy to a friend, I ask for Hennessy's Three-Star Brandy," and look at the label on the bottle to see that it has the name. As a rule I think ordinary purchasers are just as wary and careful as I am myself. I do not think the "Celebrated Old "Brandy" label would mislead even an incautious purchaser. The garland of 25 vine leaves and grapes is, no doubt, roughly speaking, the same in both; but the foliage in the "Celebrated Old Brandy" label is coarser, and the Hennessy label is more artistic. It is true that the heraldic bar appears in both, and so does the marginal line; but I don't think purchasers pay much attention to those features. I do not think ordinary purchasers usually look for the hand 30 and battle-axe, but they would certainly look for the name of Hennessy. Martell's label is blue, and the capsule is blue. I think the majority of drinkers of brandy take it medicinally, and will not drink anything but Hennessy's. Edward Hackett, licensed publican, sixteen years in the trade, said that labels similar to the "Celebrated Old Brandy" had been in common use for years, and 35 he did not believe they could mislead. The chief characteristic in the Plaintiffs' label was the name; that was what customers looked to. He regarded the other matters as immaterial. The ordinary purchaser does not look to the vine leaves, the knot, or the ribbon, or anything of that sort. He is guided altogether by the name. Cross-examined. He did not see any great resemblance between 40 the labels. He regarded the neck label as immaterial. Thomas O'Connor, traveller for Messrs. Casson, William Street, Dublin, deposed that he had from 15 to 20 years' experience of the licensed trade. A vine leaved border, such as appeared on the "Celebrated Old Brandy" label, was in common use in the trade for labelling brandy, and brandy labels were almost 45 invariably printed in gold on a white ground. He had seen the "Celebrated "Old Brandy" label in different establishments; it was in fairly common use. He did not believe it would deceive anybody. No ordinary purchaser would be misled by it into supposing that it indicated Hennessy's brandy. Customers who wanted Hennessy's looked for the name, and the hand and battle-axe. 50 Cross-examined.-There is a slight resemblance between the two labels, but there are differences. One is darker in colour than the other. Hennessy's is more artistic; the other is coarser. I do not think the resemblance would enable a dishonest publican to pass off inferior brandy as Hennessy's. Purchasers of brandy are generally an intelligent class of persons, and if they want 55 Hennessy's brandy they look to the label, and insist on getting it. Peter Kelly, licensed publican, Dawson Street, also traveller for several firms in the tea, wine, brandy and whisky trade, admitted there was a resemblance Hennessy & Co. v. Keating. between the two labels, but said that in his opinion there was no probability of deception. Cross-examined. He had not used the "Celebrated Old Brandy label himself. There are some points of resemblance, but there are striking dissimilarities. Pierce Ryan, licenced grocer and publican, Amiens Street, deposed that he 5 had been 17 years in the trade. A garland of vine leaves and grapes, printed on gold on a white ground, was in common use on brandy bottles. He had himself used "Celebrated Old Brandy " labels. He used them for a couple of years. Messrs. Hennessy objected to his using them, and threatened proceedings, but he refused to pay costs, and the matter dropped. In witness's 10 opinion, the Defendant's customers could not be deceived by the label. Crossexamined. As a whole, the labels have no resemblance, in my opinion, except in colour. When the Plaintiffs threatened proceedings against me for using the "Celebrated Old Brandy " label, I told them the name of the printers from whom I got them, and undertook to discontinue using them. I had only 11 15 bottles in stock at the time bearing the label, and did not get any more of them. They were supplied to me by Messrs. Mitchell, of Dublin. [A letter was read from Mr. Michael Verdon, solicitor, who had acted for the witness in reference to the threatened proceedings, stating: "Mr. Ryan regrets having "used any label which you consider an unlawful imitation of your label, and 20 "as proof of his regret he has taken down from his shelf the remaining bottles, "and undertakes not to expose them for sale again."] Peter Smith, proprietor of the "Tower Bar," Henry Street, Dublin, stated that the "Celebrated Old Brandy" label, or one practically the same, had been commonly used by the Dublin traders for years, even at a time so long ago as 25 to be when Messrs. Hennessy's were practically unknown in the city. In the witness's opinion a purchaser would not be liable to be deceived. The label used by the Defendant was altogether different. The "Celebrated Old Brandy" label was more clumsy, and less artistic. A customer would not be likely to mistake one for the other; purchasers of brandy generally asked for it by name, 30 and looked at the label for the name. Cross-examined.—I sold brandy in bottles bearing the "Celebrated Old Brandy" label nearly 30 years ago, when I was assistant at Mooney's. A good many customers ask for Hennessy's brandy; but I think the public generally prefer Martell's. If a customer asked for Hennessy's brandy, I do not think a publican would sell him brandy that was 35 not Hennessy's. An honest trader certainly would not; and I think the Dublin publicans are the honestest class of men in the three kingdoms. To the MASTER OF THE ROLLS.-I think it would be better, both for the public and the trade, if the use of the "Celebrated Old Brandy " label was abandoned altogether, and another label, of a totally distinct appearance, was used on the cheaper class of 40 brandies. But, in my opinion, Messrs, Hennessy ought to proceed against the big shippers abroad, and the printers, and not against the retailers; they ought to go for the big men, and not go for the little men. John Mathews, head artist at Messrs. Hely's, printers, Dublin, produced a specimen of the labels they had supplied to the Defendant. In his opinion it 45 was totally different from the Plaintiffs' label, and one could not be mistaken for the other. The label complained of had been in common use as long as he knew, at least 26 years. In fact, it probably was in use before Messrs. Hennessy's. Messrs. Hely kept the labels in stock, and supplied them to publicans when ordered. They were not specially designed for the Defendant. They were 50 marked with the words "Finest Old French Brandy." Cross-examined.—I do not remember the date when the Defendant gave us the order for 500 of those labels. I saw the "Celebrated Old Brandy" label long ago, 15 or 16 years ago, at Lyons & Sons, printers, Ormond Quay, Dublin, where I served my time. Robert Kerr, foreman lithographer at Messrs. Hely's, said he did not believe 55 the "Celebrated Old Brandy" label was calculated to deceive. There were several differences between it and the Plaintiffs' label, especially the absence of Hennessy & Co. v. Keating. the name, and the hand and battle-axe. In his opinion the points of resemblance would not mislead any one. George Hennessy, a member of the firm of Hennessy & Co., was, by special leave, examined for the Plaintiffs at this stage of the proceedings. He stated 5 that he had come from Cognac for the purpose of proving that their neck-label and star on their bottles of one-star brandy had only been used by the firm since November 1903. The neck labels on the two-star and three-star brandies had been in use for close on fifty years. The stars denoted the quality as regarded maturity. 10 James Rickard, land agent, deposed that there was no resemblance between the labels. Their appearance and general get-up were dissimilar. No one with eyes in his head would be taken in. Joseph Lyons, printer, who had for many years conducted the business of the Ormond Printing Company, Lower Ormond Quay, Dublin, deposed that from 15 1879 to 1898, when his firm was dissolved, they had kept in stock the "Celebrated “Old Brandy" label, or one similar to it, printed it from time to time, and sold it in large numbers to the trade. Cross-examined.---It was recognised and used for years as a stock brandy label by nearly the whole trade. Denis Daly, assistant in the Defendant's establishment, stated that he had 20 found the labels in question in a drawer with a number of other labels some time after he had entered the employment. He utilised them to put on the brandy which had been purchased from Delont Freres in bulk and bottled. They were only put on about 11 or 12 bottles. He never sold those bottles as Hennessy's brandy; and he did not believe that any purchaser would be 25 misled. O'Connor, for the Defendant, submitted that, although Mr. Keating was apparently a somewhat stupid man, and might be called a "bad witness," he had given his evidence fairly and candidly, that he had acted in an honest and straightforward manner, and that the Court ought to believe his evidence. 30 Counsel relied strongly on the fact that the Plaintiffs were unable to bring forward a single witness to prove either that the Defendant had passed off the brandy as Hennessy's, or that the label was calculated to mislead any purchaser. On the contrary, the evidence was all the other way. In order to entitle the Plaintiffs to succeed, they should have given some evidence by witnesses that 35 the label was calculated to deceive (per Lord Alverstone C.J., London General Omnibus Company v. Lavell, 18 R.P.C. 79; Schweppes v. Gibbons 22 R.P.C. 113). A fraudulent intention on the part of the Defendant ought not to be presumed. Hennessy v. Dompé (19 R.P.C. 333) was peculiarly in point, as in it the Plaintiffs sought an injunction to restrain the use of a label almost exactly similar to the one 40 they now complained of; but Kekewich J. refused the injunction. Counsel commented strongly on the fact that that case had not been mentioned in the Plaintiffs' opening statement. The Plaintiffs' advisers must have known of it, yet they omitted all mention of it; and the Defendant's counsel had only discovered it accidentally since Mr. Ronan had opened their case; as owing to the fact 45 that it was not reported in the Law Reports, it had escaped their notice. In that case Kekewich J. said that to entitle the Plaintiffs to an injunction, the label must be a colourable imitation, so similar as regards getting up as to be calculated to deceive. He added, By calculated to deceive' is meant this, "that a bottle bearing one label could be passed off easily, without fraud other50 "wise than by the label itself, as a bottle of the other character. Could it be "easily sold to an ordinary customer as being cognac manufactured by Hennessy "& Co.? That is the question, and I agree that you must look at the label as a "whole; but you cannot look at the whole without the parts, and not only "must you look to see where the parts are similar, but you must also see where 55 they are different; and according to common sense, and also according to "all the authorities, you must first ask yourself what part of this is peculiar "to the Plaintiffs, and what part is not peculiar to the Plaintiffs, but is 66 66 |