Fine Cotton Spinners and Doublers' Association Ld. and John Cash Astbury K.C. opened the Plaintiffs' case.-The Plaintiffs do not seek to stop John Harwood Cash from honestly carrying on business in his own name, or even as John Harwood Cash & Co. But this personal right does not extend to a Limited Liability Company. The question here is whether there is such a similarity between the names of the two Companies as to be likely to cause 5 confusion or lead to deception (North Cheshire and Manchester Brewery Company v. Manchester Brewery Company L.R. (1899) A.C. 84). The Court will intervene even where there is no fraudulent intention (Cellular Clothing Company v. Maxton and Murray 15 R.P.C. 581; L.R. (1899) A.C. 326), and will infer that confusion will occur where the names are similar (Hendriks v. 10 Montagu L.R. 17 C.D. 638). If the result of a man lending his name to a Company is to create a probable confusion with another Company the Court will restrain him from doing so (Rendle v. J. Edgcumbe Rendle & Co. 63 L.T. 94; Thompson v. Montgomery 6 R.P.C. 404; L.R. 41 C.D. 35; and Tussaud v. Tussaud L.R. 44 C.D. 678). Evidence for the Plaintiffs was given by the following witnesses :—A. H. Dickson, managing director of the Plaintiff Company; Sir W. Holland, cotton spinner; Mr. Christie, vice-chairman of the Plaintiff Company; Mr. Webb, merchant; H. Boden, lace manufacturer; S. Weston, merchant; and A. K. Bertrand. The following witnesses were called on behalf of the Defendants :-J. Gaunt, lace manufacturer's manager; W. James, hosiery manufacturer's manager; and J. Harwood Cash. 15 20 Upjohn K.C., for the Defendants.-The Plaintiffs have admitted that John Harwood Cash might have carried on business in his own name, but they say 25 that he cannot do it through the agency of a Company. There is not the slightest difference in law between the case of a Company and of an individual. The principle which applies is simply that nobody is entitled to represent that their goods are the goods of someone else, and that the Defendant Company are not doing (Reddaway v. Banham, 13 R.P.C. 218; L.R. (1896) A.C. 199, at page 30 201). Fraud or false representation alone cause the Court to interfere to prevent a man selling his goods in his own name (Burgess v. Burgess, 3 De G. M. & G. 896; and Turton v. Turton, L.R. 42 C.D. 128). The Plaintiffs really want a monopoly of the name "Cash." Even if the evidence shows that "Cash's Yarn" has been understood to mean the Plaintiffs', that is not enough. 35 In S. Chivers & Sons v. S. Chivers & Co. Ld. (17 R.P.C. 420, at page 428), Farwell J. said that it was not enough that the word had acquired a secondary meaning; there was a further question-do the Defendants so describe their goods as to be likely to mislead purchasers into believing that their goods are the Plaintiffs' goods? That case shows that in the use of a personal name the 40 same considerations apply as in the case of a descriptive term such as "Camel"hair Belting." In the present case there is no evidence of passing-off or of any likelihood of it. John Harwood Cash has dropped the name John in order to avoid confusion, and the Defendant Company have offered to state on their invoices and circulars that they have no connection with John Cash & Sons Ld. 45 The cases of Rendle v. J. Edgcumbe Rendle & Co. Ld. (ubi supra), North Cheshire and Manchester Brewery Company Ld. v. Manchester Brewery Company (ubi supra), and Tussaud v. Tussaud (ubi supra), are not applicable to this case, since they turned upon the question of fraud in the adoption of the names there complained of, whereas fraud is entirely absent in the present case. 50 JOYCE J.-Some years ago John Harrison Cash carried on a particular business under the style of John Cash & Sons. John Harwood Cash, his son, was engaged in the business, not as a partner or principal, but he was merely employed by his father. In that state of things it is perfectly clear to me that he might at any time sever the connection with his father, and set up 55 at any place, and carry on a similar business under his name of John Harwood Fine Cotton Spinners and Doublers' Association Ld. and John Cash & Sons Ld. v. Harwood Cash & Co. Ld. Cash. I think also, that he might have taken partners and the firm so constituted might have carried on such business as Harwood Cush & Co. or John Harwood Cash & Co. I will not say as Cash & Co., but certainly as John Harwood Cash & Co. or Harwood Cash & Co. In the year 1898 the Plaintiff 5 Association purchased the business of John Harrison Cush, and they had an ingenious scheme for transferring it to a subsidiary Joint Stock Company with the title of John Cash & Sons Ld. which is still maintained. John Harwood Cash continued to be employed in the same business, but he was not placed under any restrictions as to himself not carrying on a similar business if and 10 when he pleased. Therefore he was entitled, as it seems to me, if he left the Plaintiffs, who were carrying on the business as John Cash & Sons, to do exactly what I have said he was entitled to do as against his father before the Plaintiff Association ever came on the scene. As at present advised, I do not see how the Plaintiff Association or anyone else could have prevented him from carrying 15 on business in his own name. What has happened is this. He has left the Plaintiff Association, and, without ever setting up business for himself, he, in conjunction with a number of other persons, has promoted, formed and registered a Joint Stock Company with the object and for the purpose of carrying on, and such Company proposes to carry 20 on, in the same neighbourhood, a precisely similar business to that formerly carried on by John Harwood Cash's father, and since by the Plaintiff Association under the name of John Cash & Sons. The present action has been instituted to prevent that being done, because the Plaintiffs contend that if any other Company, bearing a title of which the name Cash, in any way whatever, 25 forms part, be allowed to carry on this particular business, it will, under the circumstances, not only lead to confusion, but will either be calculated to deceive and mislead the public into the belief that there is some connection or other between the two concerns, or will mislead customers into going to the new concern when they intended to go to the old concern. It has been shown, 30 I think, that although John Harwood Cash and his associates have not yet begun to carry on business under the name of the Defendant Company, the fact of his connection with another business of the same character as the Plaintiffs in the same neighbourhood, as it appears to me, has led to some confusion already in the minds of careless and uninformed persons; but 35 I do not see that John Harwood Cash is in any way to blame for that. But there is one question of fact, as Mr. Upjohn says, in this case, and that is whether if the Defendant Company is allowed to carry on business in its corporate name, this is calculated to lead persons who are, or may be, customers of the Plaintiff Association, through this subsidiary Company, into confusion between 40 the Companies, and mislead them into going to the new Company when they intended to go to the old. Now without saying that it is absolutely clear to my mind that it would, it certainly is not clear to my mind that it would not, and, on the whole I think it is possible, and I think it probable, that it would lead to that result. It must be borne in mind that John Harwood Cash has not 45 carried on any business as Harwood Cash & Co. and then transferred such business with the goodwill to the Defendant Company. In fact he has never carried on any business at all. In this action John Harwood Cash is not the Defendant, but a new Association, the designation of which is chosen so that the name Cash forms part of it. Of course, no doubt, the name Cash is very 50 valuable in connection with a trade of this kind. I do not doubt that John Harwood Cash considers that he is entitled to do that. I think the law is clearly laid down, and, if I may say so, rightly laid down, in Lindley on Companies, 6th Edition at page 153-" Any Company trading in this country can restrain other persons from registering another Company to carry on a "rival business under a name identical with or so like its own as to be calculated "to deceive, and also a Company which has been already registered under such 55 66 66 Fine Cotton Spinners and Doublers' Association Ld. and John Cash & Sons Ld. v. Harwood Cash & Co. Ld. The name can be restrained from carrying on a rival business under it." Defendant Company, it seems to me, has no legal right to the name Cash, or any other name which previously belonged to someone else, the use of which might lead to deception. I consider as the law stands at present-of course I may be wrong and, no 5 doubt, I shall be set right if I am wrong-that a new Company with a title of which the name "A" for instance, forms part, has none of the natural rights that an individual born with the name of "A" would have; I think also that such a Company does not, merely by registration, collect and incorporate the individual rights which its promoters have respectively had to carry on business 10 in their own names; and further I think that a person of the name of "A," not transferring a business and good will, cannot, by merely authorising the promoters of a Company to use his name as part of their title, confer upon such Company a right to do so as against other people who would be damaged thereby. 20 25 The result is that I think that the fact that John Harwood Cash is a promoter, 15 or one of the signatories of the Memorandum of Association, of this Company is, under the circumstances, immaterial, or I am not sure whether it does not rather strengthen the position of the Plaintiffs in claiming what they do claim in this action, which, as I have already pointed out, is not against John Harwood Cash, who has rights and undoubted rights with reference to the use of his own name, but it is against a new creation which had no existence before the registration of the Company, which had no previous right, and has not since acquired any right or title with reference to the name Cash at all from any person. The result is that I think the Plaintiffs are entitled to an Order. It is a mere question of law. I impute fraud to no one and, as I say, if I am wrong in coming to this conclusion, which I think follows really from the judgment of Lord Justice Stirling in Tussaud v. Tussaud (L.R. 44 C.D. 678) I shall be set right. I am rather disposed to think that the marginal note in Tussaud v. Tussaud is, I will not say wrong, but it is rather curious; if it is looked at, it is only a semble with a quære really, but I think the Lord Justice decided that. 30 If you compare it with the Law Times-certainly the Law Times, if not with the Law Journal-I understand the propositions which are there introduced, one as a semble and the other as a quære, to have been decided by Lord Justice Stirling, and I consider that the decision to which I am now coming is in accordance with the judgment of Lord Justice Stirling in Tussaud v. Tussaud. Therefore, 35 I think the Plaintiffs are entitled to the Order as a matter of law. An injunction was awarded in the form adopted in North Cheshire and Manchester Brewery Co. v. Manchester Brewery Co. (ubi supra) with costs. 5 Sirdar Rubber Company Ld. and Maclulich v. Wallington, Weston & Co. IN THE HOUSE OF LORDS. Present: THE LORD CHANCELLOR, THE EARL OF HALSBURY, LORD JAMES OF HEREFORD, and LORD ATKINSON. May 14th, 1907. SIRDAR RUBBER COMPANY LD. and MACLULICH v. WALLINGTON, Patent.-Action for infringement.-Construction of Specification.-" Approxi"mately."-No sufficient description of nature of invention and manner of performance.-Judgment for Defendants.-Appeal to Court of Appeal dismissed. 10 Appeal to House of Lords dismissed. In 1900 a Patent was granted to M. for "Improvements relating to Rims "and Tyres for Vehicle Wheels." M. and a Company, for whom he was trustee of the Patent, brought an action for infringement against W. W. & Co. The alleged invention, as described in the Specification, consisted substantially of a new 15 rim with a rubber tyre made to "approximately" fit it; but the evidence showed that, the base of the rim being flat, it was necessary that the tyre should have a convex base, and should be one-eighth larger than the corresponding area of the rim, and that then it would require machinery to force it into the rim. The Defendants denied infringement, and put in issue the validity of the Patent, alleging 20 (among other things) that the alleged invention and manner of performing the same were not sufficiently described in the Specification. The alleged infringement consisted in the Defendants applying a rubber tyre to a wheel sent to them to repair by the Plaintiffs, which wheel had the rim described in the Specification. It was held at the trial-(1) that the Specification did not particu25 larly describe and ascertain the nature of the invention, and the manner in which it was to be performed; (2) that there was no subject-matter; (3) that there was want of novelty; (4) that, even if valid, the Patent had not been infringed, as what the Defendants had done was a fair repair and not a reconstruction; and (5) that M. was the true and first inventor. The action was 30 dismissed with costs, except that the Plaintiffs were given the costs of the issue of true and first inventor. The Plaintiffs appealed. It was held by the Court of Appeal, that the Specification did not particularly describe and ascertain Sirdar Rubber Company Ld. and Maclulich v. Wallington, Weston & Co. the nature of the invention, and the manner in which it was to be performed, and the appeal was dismissed with costs. On the question whether what the Defendants had done infringed the Patent, if valid, the Court of Appeal stated that they expressed no opinion. The Plaintiffs appealed to the House of Lords. Held, that the Specification contained an inadequate (and, per Lord HALSBURY, 5 an inaccurate) description of the invention. The appeal was dismissed with costs. On the 27th of June 1900 Letters Patent (No. 11,686 of 1900) were granted to James Mecredy Maclulich for "Improvements relating to Rims and Tyres "for Vehicle Wheels." 66 66 10 The Complete Specification was as follows :-"This invention relates to rims "and tyres for vehicle wheels, particularly those of the kind in which the tyres "employed are of solid india-rubber or similar substance; the chief objects of my invention being to obtain a tyre that shall be as wide as, or approximately 66 as wide as, the base of the rim and that shall be held in place in the rim, 15 "with additional security, under pressure. These objects are attained by my invention without interfering with what may be termed the 'free access' of "the rubber into the rim when the tyre is subjected to ordinary pressure and "without depending upon said tyre being pinched by the edges of the flanges "of the rim, which not only cut the rubber but prevent all the rubber within 20 "the rim acting as a cushion to support the wearing surface and which, under "side pressure, have a lever-like action that frequently causes tyres of the kind "at present in use to roll out of the rim. I am also able to dispense with wires "or bands for securing the tyre to the rim, thereby avoiding the destruction of "the rubber which frequently occurs when such wires or bands are employed. 25 "According to my invention I construct the rim preferably of metal and of "such a shape that the width of the mouth, or space between the inner edges of "the flanges, is approximately as wide as that of the base. I make the flanges "of the rim with interior angles, the sides of which are flat and so arranged that "when an ordinary side pressure is exerted on the tyre, the lines of force that 30 "arise from the downward vertical pressure of the vehicle and the lateral pressure to which the tyre is subjected when in use, and that act through the tyre, enter the mouth of the rim and meet the said flat angular sides in such a manner that the force by which the tyre is wedged or retained in the rim is "increased in proportion to the vertical and lateral stresses or pressures acting 35 66 upon it. If this is done in the manner herein described I find that the tyre "does not 'roll' in the rim as it would do in a rim having curved interior "surfaces. 66 66 "I construct the rubber tyre of such a shape in cross-section that under "ordinary pressures it will not be caused to overhang, or spread laterally beyond, 40 "the flanges of the rim and will not therefore retard the aforesaid free "access' of the rubber through the mouth or space between the flanges of "the rim but permit the rubber, under ordinary pressures, to be wedged into "the rim. "The aforesaid results are obtained by making each of the flanges of the rim 45 "in such a manner that the middle portion projects outward laterally beyond "the bed of the rim, thereby causing each of the said flanges to resemble in "cross-section the sides of an equilateral or isosceles triangle, with the base "thereof removed and the apex directed outwardly. The portion at the base of "the tyre is formed of a shape substantially corresponding with that of the 50 "interior of the rim, so as to approximately fit the latter; and the portion of the "tyre that projects beyond the rim is made of such a shape that when sufficiently "large to support the weight of a carriage under ordinary pressure, it will not "overhang or project laterally beyond the flanges of the rim. |