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Gillette Safety Razor Company v. A. W. Gamage Ld.

"sale at a less price than one guinea (17. 1s. Od.), and that no allowance, bonus, "rebate, or other consideration of any kind be allowed whereby the ultimate "retail price at which the same is sold to the user is less than one guinea, and "any sale in breach of this provision will be an infringement of the Patent and 5treated accordingly. Agents and dealers are not empowered to vary this In granting this licence the owners of the Patent give to the pur"chaser the option of returning the razor and box to them within one week "after receipt of this notice if he should find himself unable to observe the "terms of the licence." The affidavit also stated that the Plaintiff Company 10 had discovered that the Defendants were selling and advertising for sale the patented razor at 19s. 6d., and later, after complaint, at 18s. 6d., and alleged the sale to one of the deponents of a razor at the last mentioned price. When the Motion was before the Vacation Judge no evidence had been filed on behalf of the Defendants, but on the hearing of the Motion before Mr. Justice WARRINGTON 15 an affidavit by John Samuel Parker, a director of the Defendant Company, was read, in which (inter alia) he denied the validity of the Patent, and referred to the letters of the 24th of March and the 4th of April 1906, and to the interview of about that date mentioned in the judgment. He also stated that the razor referred to in the affidavit of Cullen and Davison had been purchased through 20 a wholesale factor, who purchased the same from the Plaintiff Company prior to any title of the Plaintiffs to the Patent.

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Cave K.C. and E. W. Martelli (instructed by Gush, Phillips, Walters and Williams) appeared for the Plaintiffs; Walter K.C. and D. M. Kerly (instructed by Ward, Perks and McKay) appeared for the Defendants.

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WARRINGTON J.-This is an application for an interlocutory injunction pending the trial of the action. It is an action brought by Plaintiffs who claim to be the owners of a Patent, against a retail seller of the patented article, for breach of what is called a limited licence to sell these patented articles. Prima facie, if there were nothing else in the case, the Plaintiffs would, I 30 think, on the evidence before me be entitled to an interlocutory injunction subject to anything Mr. Walter might have said on that point, on which I have not troubled him at present; but the facts are these-so long ago as the 24th of March complaint was made by letter by the Plaintiff Company against the Defendants, and on the 4th of April 1906 a second letter of complaint was 35 written by the Plaintiffs to the Defendants calling attention to the previous letter of the 24th of March, and ending with these words: "We will be very "pleased to receive your immediate reply to this letter before placing the same "in the hands of our solicitors." The Defentants' affidavit further states that at same time their manager had an interview with a representative of the 40 Plaintiffs and at that interview the Defendants' manager expressly stated the Defendants' intention of continuing the sale of the razors, and repudiated the right of the Plaintiff Company to interfere with the Defendants in any way. Nothing was done by the Plaintiff Company from early in April until this writ was issued, after a further complaint, on the 2nd of October, and a Motion 45 was then made for an interim injunction. On the application for an interim injunction before the Vacation Judge the only affidavit filed was the affidavit of the Plaintiffs' manager and a solicitor. That affidavit did not refer to the facts which I have mentioned as to the early complaints. There was no affidavit on behalf of the Defendants; on that the Vacation Judge thought fit 50 to grant an interim injunction for a week, and that injunction was continued for a further period of 10 days expiring to-day. Now, ought I to grant an interlocutory injunction under those circumstances? The Plaintiffs say that it was not until September that they became the registered owners of the Patent; but they were claiming to be the patentees so long ago as April; and I cannot 55 believe that if they had desired to take proceedings then for the purpose of stopping the sale of which they were then complaining, they would not have been able to complete their title for that purpose. It seems to me that it is a simple

Gillette Safety Razor Company v. A. W. Gamage Ld.

case of plaintiffs claiming certain legal rights who have slept on their rights for six months, and then come and ask the Court brevi manu to stop that of which they have complained, but which they have allowed to go on. On the Defendants undertaking to keep an account, until judgment, of the razors sold, I shall make no Order on the Motion except that the costs shall be costs in the 5 action.

On the 16th of November 1906 the Plaintiffs gave notice of Motion for an Order restraining the Defendants, their servants and agents, until the trial of the action or further Order, from publishing the statement that the Motion on the 26th of October 1906 to restrain the Defendants from selling the Plaintiffs' 10 razors below 21s. was refused, or any other statement of the effect of such Order, omitting the undertaking by the Defendants to keep an account pending the trial of the action, or any other statement misrepresenting the effect of such Order, or calculated to induce the belief that any decision was come to on the merits of the action, or that the Motion was other than an interlocutory 15 application pending trial of the action, and on terms that the Defendants should keep an account; and (or in the alternative) that a writ or commission of sequestration might issue to sequestrate all the property and effects of the Defendant Company for the contempt of the Defendant Company in misrepresenting the effect of the Order made by Mr. Justice WARRINGTON on the 26th 20 of October 1906, and suppressing the fact that the Defendants undertook to keep an account and that the Motion was interlocutory pending the trial of the action, and that the Defendants might be ordered to pay the costs of the then application.

It appeared from the evidence filed on this Motion that, after the hearing of 25 the previous Motion on the 26th of October, the Defendants had exhibited prominently in their window a placard as follows: "Why pay exorbitant "prices"-at the top-"Down with trusts and all monopolies. In the High "Court of Justice. Gillette Safety Razor Company against Gamages. Before "Mr. Justice Warrington, 26th of October 1906. Motion to restrain Gamages 30 "from selling the Gillette razors below 21s. was refused. Buy to-day. "Gamages' price 18s. 6d. Advertised, 21s." Mr. Cullen made an affidavit on behalf of the Plaintiffs in which he alleged that the placard was untrue and misleading, and was calculated to mislead and deceive the public into believing that the Motion was the conclusion of the action and that the Plaintiffs had 35 failed, and he alluded to the fact that the placard did not state that the Defendants had undertaken to keep, until the trial of the action, an account of all sales of the razors. He also alleged that since the placard was exhibited inquiries had been made of the Plaintiffs by customers whether the Plaintiffs had failed in their action and whether they were now entitled to sell at less 40 than the licensed price, and that one custoiner had commenced to sell the razors at 18s. 6d. On behalf of the Defendants an affidavit was made by A. W. Gamage which contained the following paragraphs :- "(4) Before the Order referred to "in the said letter was made the Defendant Company had advertised that they "would sell the razors at 18s. 6d. The fact that they were willing to do so 45 "had become widely known to their customers, and they were consequently repeatedly asked for the said razors at such price after the said Order had been made. "The Defendant Company had exhibited the said letter in a prominent position "in one of their windows and all advertisements complained of were removed "and all customers who desired to purchase the razors at the prices previously 50 "offered were informed that the Defendants were unable to sell the said razors "at the same price as theretofore or at less than il. 1s. Moreover, the fact that "the injunction was granted was published in the trade and other papers and reports thereof appeared among other papers in the Ironmonger and the "Ironmongers Chronicle.' (5) After the said Order of Mr. Justice Bargrave 55 "Deane had expired and upon the refusal of Mr. Justice Warrington to

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Gillette Safety Razor Company v. A. W. Gamage Ld.

"continue the injunction it became necessary for the Defendant Company in "order to avoid the loss of the benefit of their previous advertisements and the "complete stoppage of their trade by reason of the said injunction having been granted to inform their customers and the public that the application to 5" continue the said injunction had failed, for such purpose and for such purpose "Only the Defendant Company caused the notice complained of to be exhibited. "It did not occur to the Defendant Company or any of their servants or agents that the undertaking to keep an account was either relevant or material to the "matter to which such notice was directed and it was solely for that reason 10 that the matter was not mentioned in the notice. . . (8) The Defendant "Company deny that the said notice is either untrue or misleading. They had no "intention whatever of representing that the whole issue between them and "the Plaintiffs was determined and they submit that the notice is not capable "of such a construction. The omission of any reference to the undertaking by 15" the Defendants to keep an account, if material, was quite accidental as already "stated and was due to the fact that the necessity for it did not occar to the "Defendants. Had they been invited to do so or had any complaint been made "they would at once have consented to any reasonable addition. They submit "that it is obvious on the face of the card that the refusal of the injunction was not the final determination of the action. The use of the word Motion makes this absolutely clear. (9) The Defendants have done nothing to create the impression that the Order on the Motion in any way finally determined the rights of the parties. (11) The Plaintiffs are in no way prejudiced by the publication of the document and they suffer no damage by 25the sale by the Defendants at a less price than 17. 18. The Defendants have a large stock of the said razors in hand and they were bound, having regard "to the publicity that had been given to the injunction, to bring prominently "before their customers the fact that the injunction had not been continued." The second Motion was heard on the 23rd of November 1906.

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30 The same Counsel appeared as on the first Motion.

The following cases were cited, namely:-Hall v. Roach (2 Atkins 469), Matthews v. Smith (3 Hare 331), and Coleman v. West Hartlepool (8 Weekly Reporter 734) by Counsel for the Plaintiffs; and Brook v. Evans (29 L.J. Ch. 616), Re New Gold Coast Exploration Company (L.R. (1901) 1 Ch. 860), and 35 Fenner v. Wilson & Co. Ld. (10 R.P.C. 283) by Counsel for the Defendants.

WARRINGTON J.-This is an application by the Plaintiffs for an injunction restraining the Defendants till trial or further Order from publishing a certain statement which is said to be a misrepresentation of the effect of an Order of this Court, calculated to induce the belief that a decision was come to on the 40 merits of the Plaintiffs' action, and it asks either in addition or alternatively for sequestration as for contempt of Court.

The facts are these the Plaintiffs claim to be the proprietors of a certain Patent, and they brought their action against the Defendants, seeking to restrain them from selling the patented article at a lower price than that at which they 45 were entitled to sell it by virtue of a licence granted by the Plaintiffs. That is the gist of the action.

On the 10th of October in this year a Motion came before the Vacation Judge by the Plaintiffs for an interlocutory injunction restraining the Defendants from selling the patented article, the safety razor, at less than the Plaintiffs' price50 namely, one guinea. On that Motion coming before the Vacation Judge, the Defendants asked for time to file affidavits, and asked that the Motion might stand over for a week accordingly. That was granted, but only on terms that the Defendants should undertake not to sell in the meantime, and on their refusing that undertaking the Motion stood over with an injunction in the 55 meantime. That Order was continued by consent-that is to say, no further evidence was filed-until the second motion day in this sittings. The Motion then came before me. The result of that was that it appeared that the Plaintiffs

Gillette Safety Razor Company v. A. W. Gamage Ld.

had for some months before issuing the writ known what the Defendants had been doing, and, without going in any way whatever into the merits of the case, and as I expressly said in my judgment, on that ground alone, as the application was merely interlocutory, I thought the Plaintiffs were not entitled to interlocutory relief and I refused the Motion, the Defendants undertaking to keep an 5 account. Everybody who is familiar with the proceedings in this Court knows perfectly well that an Order of that kind decides nothing, not even that the Defendants have a prima facie case for resisting the Plaintiffs' claim, or that the Plaintiffs have not a prima facie case for enforcing their claim. It decides nothing except that the temporary relief which the Plaintiffs were asking for 10 could not in the discretion of the Court be granted because they had waited so long before applying for it. That is all that Order decides. On the Plaintiffs obtaining the interim Order of the 10th of October the Defendants had of course, as they were bound to do, discontinued selling these razors at a lower price than one guinea, and they had pasted in their window-I suppose as an 15 explanation of the reason why they were not selling at the lower price at which they had been accustomed to sell them-the solicitors' letter informing them that the injunction had been granted. On the result of the application before me becoming known the Defendants stuck up in their window for some days in an extremely prominent part, and after than in a conspicuous, though not so 20 prominent part, this placard. [The placard was read.] What would anybody in the trade, or any ordinary customer not in the trade, conclude from that? They are asked why should they pay exorbitant prices, and the answer is-Do not pay exorbitant prices because the Motion to restrain Gamages from selling razors below 21s. has been refused. What does that mean but that the Plaintiffs had 25 failed in establishing a right to restrain Gamages from selling razors below 21s. There is not a word to suggest that it was a mere refusal of an interlocutory Order; not a word to suggest that the refusal was merely on the ground that the Plaintiffs had been guilty of some delay in commencing their proceedings. It seems to me that an ordinary customer reading that placard would come to 30 the conclusion that the attempt of the Plaintiffs to stop Gamages from selling at 18s. 6d. had failed, and that they were therefore entitled for the future to sell at 18s. 6d. If I am correct in thinking that that is the right view of the placard, and that that is the right view is shown as forcibly as it can be shown by the affidavit that has been filed on the part of the Plaintiffs, then what is the case 35 with which I have to deal? It seems to me that the application is really founded on this-that it is a contempt of this Court to unfairly or untraly represent, to the prejudice of one of the parties to the cause, the proceedings that have taken place in the cause, and there is abundant authority for holding that that is contempt. I need only refer to Hall v. Roach, which has been 40 cited by Mr. Cave, and to the other case of Matthews v. Smith; in fact it was admitted by the Defendants' Counsel, Mr. Kerly, when I put it to him, that in order to make out a contempt of Court, if you get a misrepresentation, to the prejudice of one of the parties, of the result of proceedings, it is not necessary to show further that it will tend to prejudice the future conduct of the pro- 45 ceedings, because such a contempt as that to which I have referred may well be committed in a case in which the proceedings have come to an end.

It seems to me, therefore, that this placard is an attempt by the Defendants, to the prejudice of the Plaintiffs, to misrepresent what had taken place in Court before me, and that on that ground the Plaintiffs would in strictness be entitled, 50 the Defendants being a limited company, and proceedings for committal or attachment therefore not being appropriate, to sequestration against the Defendants as for their contempt, but the Plaintiffs leave it in my hands to determine whether there should actually be a sequestration, and it seems to me that I shall sufficiently protect the Plaintiffs and at the same time assert the 55 right of the Court to keep its proceedings from being misrepresented, by granting the injunction which the Plaintiffs ask for, that is to say "That the

Gillette Safety Razor Company v. A. W. Gamage Ld.

"Defendants may be restrained till further order from publishing the statement "that the Motion was refused, or any other statement of the effect of such Order, "omitting the undertaking by the Defendants to keep an account pending the "trial of the action, or any other statement misrepresenting the effect of such 5 "Order or calculated to induce the belief that any decision was come to on the "merits of the Plaintiffs' action or that the Motion was other than an inter"locutory application pending the trial of the action." I will grant that injunction and must order the Defendants to pay the costs.

Walter K.C. stated that the Defendants desired to appeal and asked for a stay 10 of the injunction if notice of appeal were given at once?

WARRINGTON J.-If you want my leave to appeal I will grant it you, but I shall not stay, the injunction.

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IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION.

Before MR. JUSTICE SWINFEN EADY.

November 6th and 17th, 1906.

MARTIN AND JAMES v. CONSETT IRON COMPANY LD.

Patent.-Action for infringement.--Construction of Specification.—Infringement not found.—Judgment for Defendants.

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Owners of Letters Patent for "Improvements in machinery for breaking 20 “pig iron” brought an action for infringement. The Patentees in their Specification described mechanism for feeding the mass into position, clamping it, breaking offpigs from the sow, and breaking the sow, and for each of these operations they described plungers working in ram cylinders. In their first Claim they claimed the machine comprising the four rams for the four operations, substantially as described. The Specification stated that the plungers instead of being operated by hydraulic power might be actuated by steam or other motive agent. In the Defendants' machine the operations were executed by means of eccentrics, toggle links, levers, and cams, off a mechanically driven shaft, whereas the Plaintiffs' machine had no revolving parts. The question of infringement turned on the point whether the Claims were confined to machines such as described and operated by means of rams, or whether they included machines with similar or analogous working parts operated by means of a power driven shaft.

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Held, that the Plaintiffs could only claim the invention specified-that is, the 35 machine with four rams for four definite purposes-and that the Defendants had not infringed. The action was dismissed with costs.

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