Boord & Son v. Thom and Cameron Ld.-Thom and Cameron Ld. v. Held, that when a Trade Mark has been registered and has remained many years on the Register there is an onus on a person alleging common user to prove that it should not have been put on the Register, which onus is not discharged by proving that there has been occasional use of the mark by others 5 prior to its registration, unless it is proved that there has been sufficient trade under the mark to associate the goods of others therewith; and that, regarding the evidence as a jury would, such trade had not been proved in the present case. Observations on the nature of the right to a Trade Mark. Held that designs representing a cat and barrel, though not closely resembling 10 the cat and barrel in B. and S.'s registered Trade Mark were, in view of the evidence associating the "Cat and Barrel" with B. and S.'s goods, infringements of their mark. Boord & Son v. Thom and Cameron Ld.-Thom and Cameron Ld. v. These were counter actions relating to the right to use for sweetened gin labels containing prominently representations of a cat and barrel. Boord & Son were the registered proprietors of Trade Mark No. 20,505, registered as an old mark in 1879 in Class 43 for fermented liquors and spirits, namely, wine, whisky, and liqueurs. The mark as registered is represented on page 698. In 1881, by Order of Court, "Swaine, Boord & Co." was removed from the Mark, and a note added to the registration that the name of the firm or person for 5 the time being entitled to the Mark might be inserted in the blank space. This Trade Mark was used by Boord & Son as a label, with their name inserted in the blank space. The label used was about 5 in. by 3 in. The ground was 10 white, edged by an ornamented pattern in red between gilt lines, except at the corners where there was also blue colour. "Boord & Son " and "London" was in white on red with a gilt surround. "Cordial Old Tom " was white on gilt 5 Boord & Son v. Thom and Cameron Ld.-Thom and Cameron Ld. v. within a blue circle. The barrel was gilt with red hoops and rested on an ornamental device on the top of the circular device, and bore a grey cat with gilt collar and dexter paw uplifted. A representation of this label will be found on page 699. Thom and Cameron L1. used regularly on quart bottles the label represented on page 700 (No. 33 of process), which was not registered. The label was about 5 in. by 3 in. The ground was white edged by blue and gilt between thin black lines. The barrel, brown with!lgilt hoops, rested on a ground shaded blue-black. "Cream Old Tom" and " T. & C." were white, one anchor red and the other 10 dark; and "Thom & Cameron's," "Trade Mark," and "Gin" were all gilt. "Superior" was red and shaded gilt; "Thom and Cameron (Limited), Glasgow " & London" was red; and "Old Tom Gin" was black with a double shading of gilt and blue. The cat was grey, with a gilt collar, and the bottle and glass a very light blue. Thom and Cameron also used three other labels, 15 containing representations of a cat and a barrel,-(first) No. 39 of process, representing a cat sitting on the top of a barrel as in No. 33, but with its head turned towards the spectator and without the bottle and glass. The whole was within a circular surround, which cut off all but a small portion of the upper part of the barrel. The label was nearly square in shape, the rest Boord & Son v. Thom and Cameron Ld.-Thom and Cameron Ld. v. Boord & Son. of it being occupied by ornament and scrolls of lettering; (second) No. 21 of Process, where the cat is sitting on a barrel placed on its bilge. Both these were old labels used by the predecessors of Thom and Cameron in trade; Thom and Cameron explained that they had been long out of use; (third) No. 18 of Process, where a cat is standing on a barrel placed on its bilge above two other 5 barrels also on their bilge. This label was only used on gin sold in Valparaiso by Weir, Scott & Co. The gin was procured by them from Thom and Cameron, whose name was on the label, and who pasted the labels on the bottles before exporting them from Scotland. Representations of these labels will be found on pages 701, 702, and 703. The first action, commenced the 1st of July 1904, was by Boord & Son Ld., distillers and wine and spirit merchants as Pursuers against Thom and Cameron Ld., whisky merchants and blenders, Cheapside Street, Glasgow; and also against the now dissolved firm of Thom and Cameron, which carried on 10 Boord & Son v. Thom and Cameron Ld.--Thom and Cameron Ld. v. business at Cheapside Street, aforesaid; and also against Robert Thom, John Cameron, and Robert Wilson Thom, the sole partners of the said now dissolved firm of Thom and Cameron, as such partners and as individuals. The Pursuers asked (first) for declarator that they were the sole proprietors 5 of the Trade Mark registered by Thomas William Boord, then trading as Swaine, Boord & Co., their predecessor in business, being Trade Mark number 20,505 registered in Class 43 for fermented liquors and spirits, including liqueurs, on the 8th of April 1879 as having been used for twenty-five years before that date; and of the Trade Mark registered by them, being Trade 10 Mark number 257,763 registered in said class for gin on the 7th of June 1904 as having been used since upwards of twelve years before the 13th of August 1875; and of the Trade Mark also registered by them, being Trade Mark number 257,764 registered in said Class for gin on the 7th of June 1904 as |