Boussod, Valadon & Co. v. Marchant. premises under the said Agreement and sale. (5) The Defendant denies "each and every allegation in paragraph 5 of the Statement of Claim. During 66 66 66 66 6 the negotiations which led to the Agreement of July 23rd 1901, the Defendant required the right to use the name, the 'Goupil Gallery' in the event of his 5" purchasing the Plaintiffs' premises. The Plaintiffs verbally agreed to this "provided that the firm of Manzi, Joyant & Co., in paragraph 2 of the Statement "of Claim referred to, raised no objection and did not threaten the Plaintiffs "with legal proceedings. On or about August 15th 1901 the Plaintiffs in 66 conjunction with the Defendant issued a circular to their former customers 10" The said circular constitutes as the Defendant contends an "admission that so far as the Plaintiffs were concerned the Defendant was "entitled to the use of the name of the 'Goupil Gallery' which right the "Plaintiffs, so far as they were concerned, always at all material times intended "that the Defendant should have. The said circular was sent to the said 15" firm of Manzi, Joyant & Co. and they were thereby aware and have "otherwise known that the Defendant was using the name, the 'Goupil Gallery.' "The said firm of Manzi, Joyant & Co. did not within a reasonable time or at "all, after that they had knowledge that the Defendant was using the said name, raise an objection thereto or threaten the Plaintiffs with legal pro20" ceedings. The Defendant relying on the above mentioned verbal agreement "and upon the said circular has, by his skill and industry, created a large and substantial business in connection with the name the Goupil Gallery' and "he contends that by reason of their conduct herein alleged the Plaintiffs are 66 now estopped from disputing, and not entitled to dispute that the Defendant 25" is entitled to use the said name. (6) The Defendant denies that since July "1901 he has carried on the Plaintiffs' business. He has carried on his own "business as William Marchant & Co. at the 'Goupil Gallery' and has in " addition acted as sole agents in the United Kingdom for the Plaintiffs who do "not carry on business therein. Save as in this paragraph appears he makes 30 66 no admissions as to paragraph 6 of the Statement of Claim. (7) The "Defendant denies that he ever agreed as alleged in paragraph 7 of the "Statement of Claim or at all." [The paragraph then set out circumstances under which the Defendant signed the memorandum therein referred to and alleged that it was not intended to be an agreement binding on him.] 35 (8) In this paragraph the Defendant alleged that the Plaintiffs have waived the memorandum and gave particulars. (9) The Defendant further says "that neither by the terms of the said Memorandum of July 6th 1906 or other"wise is he disentitled to use the name the 'Goupil Gallery.' He makes no "admission as to any of the matters in paragraph 8 of the Statement of Claim save and in so far as the same itself contains admissions. (10) If the said "Memorandum of July 6 1906 is enforcable against him, which he denies, the "Defendant will contend that it is so in its entirety, and that under the terms "thereof he is now entitled to use the name the 'Goupil Gallery,' and he says "that the said Memorandum constitutes a Defence to this action. (11) Save that 45" he uses the name the 'Goupil Gallery' upon his said premises, paper, and in "advertising, he denies each and every allegation in paragraphs 9, 10 and 11 of "the Statement of Claim." (12) Alternatively to the Defence the Defendant repeated paragraphs 7 and 8 thereof and claimed rescission of the alleged Agreement of July 6th 1906. "(13) The Defendant repeats the Defence, and says that 50"the name the 'Goupil Gallery' is known in connection with, and as indicating "his business which he has created and has carried on at 5 Regent Street and "10 Charles Street aforesaid since July 1901. In or about the month of May "1907, the Plaintiffs by themselves or their agents Messrs. Manzi, Joyant & "Co., wrongfully caused the name the 'Goupil Gallery' to be placed upon the 55 "window of certain premises 25 Bedford Street in London, and the Plaintiffs or their said agents are now, and have been carrying on the business of picture "and art dealers at 25 Bedford Street aforesaid under the style of and in 40" 66 66 Boussod, Valadon & Co. v. Marchant. "connection with the said name the 'Goupil Gallery.' The said use by the "Plaintiffs of the said name is calculated to deceive and does deceive the "public into believing, and constitutes a representation that the business so "carried on by the Plaintiffs or their said agents at 25 Bedford Street "aforesaid is the business of the Defendant or is connected therewith. By 5 66 reason the Defendant has suffered damage." The Defendant counterclaimed for (1) Rescission of the alleged Agreement of July 6th 1906; (2) Damages under paragraph 13; and (3) An injunction under paragraph 13 to restrain the Plaintiffs, their servants and agents from using the said name the "Goupil "Gallery" and from carrying on business under the style of or in connection 10 with the said name or any other name or style in such manner as to represent that the business carried on was the Defendant's business or was connected therewith. The Plaintiffs delivered a reply joining issue and containing paragraphs relating specially to the Memorandum of Agreement of the 6th of July 1906, 15 and denying that the name the "Goupil Gallery " indicated the business of the Defendant. The Agreement of the 23rd of July 1901 will be found sufficiently stated in the judgment as well as the facts proved at the trial. Buckmaster K.C. and F. H. Maugham (instructed by Dixon, Weld and 20 Dixons, agents for Sewell and Maugham of Paris) appeared for the Plaintiffs; Romer K.C. and Ronald Walker (instructed by Kirby, Millett and Ayscough) appeared for the Defendant. In the course of the arguments Hoby v. Grosvenor Library Co. Ld. (28 W.R. 38), Mason v. Queen (23 Scot. L.R. 641) and Townsend v. Jarman (17 R.P.C. 25 649; L.R. (1900) 2 Ch. 698) were referred to. PARKER J.-This is a somewhat difficult case, and if I thought that any useful purpose would be served by my further considering it, I should reserve judgment, but I have come to a conclusion, and I do not think that any further consideration would modify that conclusion in spite of the difficulties with 30 which the case is attended. The Plaintiffs ask against the Defendant an injunction restraining him from carrying on business as a picture or art dealer under or in connection with the name or title of the "Goupil Gallery " or " Goupil," or under or in connection with any name or title so as to represent that the Defendant's gallery or 35 business is the gallery or business of the Plaintiffs, or is connected therewith, or that he is the successor of or connected with the Maison Goupil or the business heretofore carried on under that name. The Plaintiffs, Boussod, Valadon & Co., are well-known dealers in pictures and other objects of art, carrying on business in Paris and elsewhere, and are 40 the present proprietors of the Parisian establishment known as the Ancienne Maison Goupil, which was formerly the property of Goupil & Co. The latter firm was reconstituted in the year 1884, those of the partners who bore the name "Goupil " becoming what is known in France as Associé commanditaire, that is to say, as I understand it, partners, whose liability is limited to the amount 45 they have either found or agreed to find for the purposes of the business, and whose names cannot, therefore, according to French law, form part of the title of the firm. The reconstituted firm therefore appears to have taken the name of Boussod, Valadon & Co., M. Boussod and M. Valadon being the full partners, but they appear to have reserved the right, if the reservation were necessary, 50 upon the reconstitution of the firm to represent themselves as successors of the old firm, and they have continued in fact to represent themselves as such successors, carrying on business largely as "Goupil & Co., Boussod, Valadon " & Co. Successeurs," or, in business done in England, "Successors.' The old firm of Goupil & Co. had a branch establishment in London, which was 55 formerly situate in Bedford Street, but, shortly before the reconstitution of the firm under its new name, was removed to 116 and 117 Bond Street. At this Boussod, Valadon & Co. v. Marchant. branch establishment in Bond Street they had show rooms and galleries in which, from time to time, they held exhibitions of pictures and engravings and other objects of art. These galleries or show rooms came to be known, first as Goupil & Co.'s Galleries, and, afterwards, I think upon the evidence about the 5 year 1885 to 1886, as the "Goupil Gallery," and certainly about the year 1885 to 1886 the term "Goupil Gallery was used in connection with the Bond Street premises, appeared on cheques and letter paper of the firm, and also in trade directories, and in advertisements issued by or on behalf of the firm. This continued until the year 1893 when Boussod, Valadon & Co. moved their 10 London branch from Bond Street to No. 5 Regent Street and No. 10 Charles Street. The main entrance of the new premises was in Regent Street and over that entrance Messrs. Boussod, Valadon & Co. caused the words, the "Goupil Gallery" to be permanently affixed. They continued to use their old letter paper, stamping the words "Removed to No. 5 Regent Street and No. 10 Charles Street 15 after the words the "Goupil Gallery," and when new letter paper was required it was headed: The "Goupil Gallery, No. 5 Regent Street," sometimes with, and sometimes, I think, without the addition of "Goupil & Co.: Boussod, "Valadon & Co., Successors." Further, the words the "Goupil Gallery " continued to appear in trade directories and advertisements as theretofore, 20 except only that the address given was Regent Street, and not Bond Street. This state of things continued until the year 1897. In 1897 Boussod, Valadon & Co. sold that part of their business which was connected with the sale of books, printed books and engravings to a firm called Manzi, Joyant & Co. Upon that sale some arrangement was made between the vendors and the purchasers 25 as to the manner in which they should thenceforth respectively use the words Goupil & Co." as a trade description, or part of a trade description, but there appears to have been no arrangement as to the use of the words "Goupil "Gallery." Boussod, Valadon & Co., however, continued to carry on their business as theretofore, no alteration being made except that the business 30 was thenceforth confined to pictures, the words "Goupil Gallery" still remaining over the Regent Street entrance, and still being used on their letter paper and advertisements, and still appearing in the trade directories. In the year 1898 the Defendant, Mr. Marchant, became manager of the London branch of the Plaintiffs' business-he had been employed in the 35 Plaintiffs' business for some years previously, though in a more subordinate position and the branch continued to be conducted under his management in precisely the same manner as it had theretofore been conducted under the management of his predecessors, and that continued until the 23rd of July 1901. 40 66 The 23rd of July 1901 is an important date in the history of the case, and I think it is as well to consider what was the position of affairs at that date. On the 23rd of July 1901 I entertain no doubt whatever that the words, "Goupil Gallery," were so closely associated with the business of picture dealers carried on at No. 5 Regent Street and No. 10 Charles Street that 45 Boussod, Valadon & Co., the owners of that business, could have restrained the use of the words by any rival trader. Of course, looking on what is generally referred to as the public as a whole, the expression "Goupil Gallery," would have probably conveyed to many nothing at all, with the possible exception that it might suggest a building of a certain character or internally arranged 50 in a certain manner, and they would not know whether it was a gallery for shooting purposes, or whether it was a gallery for the purposes of exhibition: to others of the public, for example, to cabmen, which was, I think, the example I gave in the course of the argument, it might suggest nothing except the name of a particular place to which they were required to drive their fares; but to 55 that considerable section of the public which enjoys visiting picture galleries, I have no doubt that the expression would mean a particular picture gallery where pictures could be seen from time to time, and to the more educated Boussod, Valadon & Co. v. Marchant. among that class the words would suggest, not only a picture gallery where pictures might be seen, but where pictures of a particular merit or a particular style might be seen, or where examples might be found of the works of this artist or the other; and, again to a still more limited section of the public, those for instance, who are accustomed to buy pictures, the words would 5 suggest a firm of picture dealers; and, lastly, to clients of that firm and to the members of the trade, who know most things, the words would be associated with a particular firm known to them by name, or with particular members of that firm, in the present case with Messrs. Boussod, Valadm & Co. Under those circumstances, if a rival trader had in 1901 commenced business, calling 10 his gallery the "Goupil Gallery," in my opinion it would have been a somewhat barefaced attempt to get the benefit of a reputation which belonged to another, and such trader would have been restrained by injunction. This being so, the next thing to consider is whether the position of things, on the 23rd of July 1901, has been changed by anything which happened on that 15 date, or which has transpired since. Some time prior to the 23rd of July 1901 the Defendant had been desirous of setting up business on his own account, and Boussod, Valadon & Co. had been quite willing to lend him a helping hand in that behalf. At first negotiations had taken place with a view to the Defendant purchasing the goodwill of the English branch of Boussod, Valadon & Co.'s 20 business backed by covenants restraining Boussod, Valadon & Co. from competing with him in the business of picture dealers throughout the United Kingdom. These negotiations however had fallen through, chiefly, I think, because the Defendant could not afford to give such a price as Messrs. Boussod, Valadon & Co. thought, having regard to their business interests, they would be bound 25 to charge on such a transfer of goodwill backed by such covenants. Endeavours were then made to devise a scheme by which, without any sale of the goodwill of the English branch, or the entering into any such covenants as I have alluded to, Mr. Marchant might be enabled to set up business on his own account with a fair chance of success. It was recognised, I think, by all parties 30 that the chance which Mr. Marchant had of succeeding in setting up any business on his own account depended largely on the use he could make of Boussod, Valadon & Co's. connection, and the endeavours which were made to devise some means for that purpose ended in the execution of the Agreement of the 23rd of July 1901 to which I will now refer. The first and second clauses 35 of that Agreement provide for the purchase by Mr. Marchant of the premises No. 5 Regent Street and No. 10 Charles Street with the fixtures, trade fittings and requirements and all furniture, hangings, and carpets now in or about the same, at the price of 2,000l. By the third clause of the Agreement Boussod, Valadon & Co. grant to the Defendant's firm for the term of five years from the 40 1st of January 1901 "the exclusive right to describe themselves as 'Agents' or "Sole Agents for the United Kingdom of Great Britain and Ireland of Boussod, Valadon & Co., Picture Dealers, Successors of Goupil & Co., Picture Dealers.' By the fourth clause of the Agreement Boussod, Valadon & Co. agreed to leave to the Defendant's firm for the purposes of sale, certain pictures which were 45 classified under three heads. Under the first head of pictures which were left is the stock in the premises at Regent Street and Charles Street which had been selected for the purposes of sale by the predecessors of the Defendant in the management of the London branch. The second head consists of the stock of pictures and drawings in the premises at Regent Street and Charles Street 50 which had been selected for sale by Mr. Marchant himself, while he was manager of the business. The third head, under which these pictures were to be left for sale by the Defendant, comprises such pictures, drawings and objects of art as the Defendant firm, with the consent of the Plaintiffs, shall from time to time select from the stocks of Boussod, Valadon & Co. at Paris or elsewhere. 55 With regard to the first class of pictures the Defendant appears, under the terms of the Agreement, to be simply an agent to sell them on behalf of his principal, 66 6 Boussod, Valadon & Co. v. Marchant. and he is to receive a remuneration which is to be dependent upon the amount of profits made upon the sale. With regard to the second class he is not simply in the position of agent; he has to pay interest upon them as from the 1st of January 1901, the interest being fixed by reference to what is called the "cost 5" price," which is the subject of certain clauses of the Agreement, and he may be required, from time to time, to purchase certain of those pictures in the manuer and at the times provided by the Agreement. If he sells them before he has purchased them, he receives a remuneration, as in the case of the first class, dependent upon the profits which he makes on the sale; but if he sells 10 them after the purchase, he sells them entirely on his own account and is entitled to all the profits. With regard to the last class, those pictures which are selected from the Paris stock, or the stock elsewhere by the mutual consent and agreement of the parties, it is to be at the option of Boussod, Valadon & Co., whether they shall be invoiced to the Defendant at the cost price (in which case 15 they are in the same position with regard to the resale as the pictures in the second class) or whether they shall be invoiced at a price fixed by Boussod, Valadon & Co., in which case, as I read the Agreement, the Defendant, in effect, becomes a purchaser and sells on his own account. There is a provision that Boussod, Valadon & Co. may withdraw pictures from time to time in the 20 manner and at the times therein provided, and then the 12th clause of the Agreement, on which reliance was placed by both parties, is to the following effect-First, "That William Marchant & Co. shall not, during the "continuance of this Agreement, represent themselves as the agents of any picture dealers other than Boussod, Valadon & Co., nor shall they, in their character of Agents of Boussod, Valadon & Co.,' establish a branch house in "any country in which Boussod, Valadon & Co. shall at that time already "have establishments or branches, nor shall William Marchant & Co. carry on "the business of print sellers or booksellers"; and, secondly, "Boussod, "Valadon & Co. shall not, during the continuance of this Agreement, establish any other house or agency or appoint any other agents in the United "Kingdom," with a proviso that, subject to those restrictions, each party is to be at liberty to carry on its own business in its own name. The only other clauses to which I need refer are the 21st clause of the Agreement, which provides that the agency created by the Agreement is to be determinable on the 35 death of the Defendant, on his failing to pay what shall appear to be due from him on the annual statement for which the Agreement provides, or on his permitting any breach of the Agreement and failing to remedy the breach within a specified time, and the 22nd clause, under which the Agreement is determinable by the Defendant by a three months' notice in writing to Boussod, 40 Valadon & Co. if that firm fails to keep any of their engagements. 25 66 66 30" 6 It appears to me that there are several points of importance to be noticed with regard to this Agreement. First and foremost, nothing is said as to the use of the expression "Goupil Gallery." Secondly, during the agency thereby created Boussod, Valadon & Co. are precluded from having any branch business 45 in the United Kingdom, and such business as they do in the United Kingdom is confined to cases where pictures of theirs are disposed of by the Defendant acting as their agent within the meaning of the Agreement. There is, however, no provision requiring the Defendant to keep their name in any way before the public, or to describe himself as their agent, though he has the 50 privilege of so doing; nor is there any provision that he is bound to do his best to sell for them any pictures which they may choose to commit to him for sale; he is not bound to make any selection out of the stock in Paris for sale in England; he is not bound, in fact, to sell for them any pictures at all, and it would appear, under these circumstances, that the Agreement has been deliberately 55 framed without any view to the protection of Boussod, Valadon & Co., or of their business connection, but rather with the view of enabling the Defendant, Marchant, or his firm, to have, for a certain period-five years, or until |