Winser & Co., Ld. v. Armstrong & Co. When they ceased to use it precisely I cannot say. So far as the evidence goes, no traps were ever sold by them before the commencement of this action without the word "Registered" and that number being put upon them. It may have been discontinued shortly before action, but I have not had any distinct evidence as to when the discontinuance took place. They have given to 5 traps made in accordance with the design in question this name of the "Winser "Interceptor," or trap, and quite recently one of such traps has been purchased at Anerley on behalf of the Defendants bearing the words "The Winser Trap," then "Registered No." and then the number with the name and address of the Plaintiffs. As a rule, the Plaintiffs' traps are sold without the words, "The 10 "Winser Trap," upon them, but always with the name of their firm and with "Registered and the number impressed upon them. Quite recently the Plaintiffs have in their catalogues sometimes described their traps as The "Registered Winser Intercepting Sewer Trap." I have looked at their last catalogue, page 10—I think it is really their last catalogue but one, but as to 15 that I am not quite certain, because the last catalogue is formed by putting some addenda at the commencement of the previous one. But at page 10 there are the words "The Registered 'Winsers' "-in inverted commas-" Intercepting Sewer Trap." At page 2, of what I may call the second part of this book, I find a section and plan of a disconnecting chamber, and the illustration shows 20 the method of fixing the "Winser'"-in the singular and in inverted commas— "Intercepting Sewer Trap." Then there is a reference, Table A, "The Winser' Trap ""Winser " being in inverted commas. At page 5, I find, speaking of the patent protector trap, it says:-"The trap has all the advantages of the "well-known Winser'"--in the singular and in inverted commas-"Inter- 25 "certing Sewer Trap." At page 7 I find another trap described, which "Has "all the advantages of the well-known Winser '"-in inverted commas— "Intercepting Sewer Traps," so that it is perfectly clear that until quite a recent date the Plaintiffs had spoken of the trap in question as the "Winser"" -in inverted commas-"Intercepting Trap." 66 6 I am invited by Counsel for the Plaintiffs to put to my self this question : Does the term "Winser Interceptor" mean an interceptor made or sold by the Plaintiffs as distinguished from the interceptors made or sold by other persons, or does it mean interceptors of a particular kind without reference to any particular maker? 30 35 Now it becomes necessary to consider the evidence upon this matter, and I have had before me certain witnesses, called from the classes of those who usually deal or have to do with these matters-architects, manufacturers of sanitary articles, building material dealers, and builders. If a man registers a new design, and gives the article made in accordance with that design a name, 40 that name describes the article. In this particular trade there are intercepting traps already known and identified by the name of the inventor, or of the persons who first introduced them, such as Buchan's, Beale's, and Weaver's traps. A man having invented a new design of trap, and given it a name, may present that name to the public as part of what he does. So long as he is protected 45 by registration he, and he alone, can make in accordance with the design so registered, and the public are warned by the impression of the word "Registered" and the number that they must not make that article, which is an article belonging to the person who has so registered it. When the registration has expired, the article, whatever it is, becomes common property, 50 and anybody may make it. They must not, of course, make the article and represent it to be an article of the Plaintiffs' make, or as being an article sold by the Plaintiffs; in other words, they must not, although they are entitled to make the articles, represent to the public that the goods they so make are goods. made or sold by the other persons, formerly the registered owners. In the case 55 of the Singer Manufacturing Company v. Looj, 8th Appeal Cases, page 27, Lord Selborne says: "The reputation acquired by machines of a particular 5 Winser & Co., Ld. v. Armstrong & Co. "form or construction is one thing; the reputation of the Plaintiffs as manu"facturers is another. If the Defendant has no right under colour of the "former to invade the latter, neither have the Plaintiffs any right under colour "of the latter to claim (in effect) a monopoly of the former.' 66 Now upon the evidence it appears it is customary in the trade for catalogues to describe many articles by numbers and many articles by names. If a man desiring to order a trap of a particular design from a particular manufacturer has the catalogue of that manufacturer before him, he will naturally in ordering take the description that is given--either a number or name-by the manu10 facturer. If he does not he has to describe the article in some way so that it shall be known what is the kind of article he requires. Now I am quite satisfied upon the evidence before me that the design in question represents a type or pattern of trap having a cascade with a raking arm, and designed in a contracted form, so that it may be readily used in manholes and 15 other places where there is comparatively little room. It is clear beyond all possibility of question; and it is clear to my mind also that amongst builders, manufacturers, and architects the term "Winser Trap" denotes a trap of a particular type or pattern, and there would not have been in the present case a shadow of ground for complaint had the Defendants purported to supply 20 "Winser" pattern traps, or "Winser" type traps. Have they done anything more? That is the real question. They were asked to supply "Winser traps. Mr. Ellis, who gave the order for the "Winser" traps, said he meant and expected to get traps of this particular kind made by Messrs. Winser & Co. Mr. Ellis had been supplied by Messrs. Winser & Co., or by 25 other persons with their goods previously, and always with the word 'Registered" and the number, on the goods so supplied, and with the name of the firm upon them. Having got the order, Messrs. Armstrong & Co. put the order out and obtained the articles they required, under the same description, from manufacturers of such articles. The invoice which was sent 30 to Mr. Ellis says, "4 6-inch Winser Interceptors," and then it gives the price. In like manner Messrs. Armstrong & Co. ordered so many "Winser Interceptors" to be made by a firm of the name of Messrs. Robinson & Dowler, and accordingly they got interceptors made according to this design, which they furnished to Mr. Ellis. Now, was it intended in supplying those 35 goods, not marked in any way in imitation of the Plaintiffs' goods, to represent to Mr. Ellis that the goods so supplied were the goods of the Plaintiffs? Was Mr. Ellis justified in assuming that the goods so supplied were goods supplied by Winser & Co., Ld."? He, it is clear, did not, in terms, order that the goods he desired to be supplied with-the traps of this particular 40 pattern-should be made by Messrs. Winser & Co., Ld. When he received the traps he was not deceived into thinking that they were articles similar to the articles which he had received before. Now the Plaintiff in his evidence says, "Any builder could not mistake F. S. W. 4" (that is one of the Defendants' interceptors) "for F. S. W. 3 if he knew ours." The Plaintiff 45 says that it would be impossible for a builder to make the mistake, and Mr. Ellis it is clear did not think they were the same things as he had before, but he says he did not know but that Messrs. Winser & Co. might manufacture goods in a different way from those which he had seen-of a different type in appearance, in material, and in finish; that is to say, in the colour of 50 the material and in finish, and without the marks which he had always seen upon them. The Plaintiff, in answer to a question whether the traps which the Defendants supplied were likely to deceive a purchaser, says: "Not 66 66 66 66 very like ours-the lines are very different." He says: "If a trap is ordered as the Winser Interceptor,' it would mean and would describe a trap of our 55" make of good quality." I can only say, having carefully listene 1 to the evidence which was given on behalf of the Defendants, that it is to my mind absolutely proved that the terms Winser & Co., Ld. v. Armstrong & Co. "Winser Traps" or "Winser Interceptors," or "Winser's Traps" or "Winser's "Interceptors," denote clearly to persons in the trade the particular type or pattern to which I have referred; and although Mr. Ellis and two or three other witnesses say that to them it would also denote the Plaintiffs' goods, I do not think I can do otherwise than come to the conclusion that in the 5 trade the name has got to mean the type of machine or interceptor, not necessarily those which are sold by the Plaintiffs. It would not be the less or the more a "Winser Interceptor" because it was supplied by the Plaintiffs. I have had before me a body of persons connected with the trade, and all of them have given evidence to this effect, and some of them-one in particular- 10 had never even heard of the name of "Winser & Co." although perfectly acquainted with the "Winser Interceptor." It is possible, of course, that a man's goods may have got known on the market in such a way in connection with his name or with the name which he has attached to the article, as that other people cannot use the name, without some explanation, more or less 15 careful, that these are not the goods which are made or sold by him; and, indeed, some names may become so attached that it is almost impossible to make a sufficient distinction if you use the name. I have come to the conclusion in the present case, upon the evidence before me, that although a certain number of persons who have always been supplied 20 by the Plaintiffs, and who have always seen the word "Registered" with the registered number upon these traps-although a certain number of people, not knowing that other people make the "Winser Interceptors," may think that they are getting Winser & Co.'s goods, that is not in consequence of the use of the term "Winser " alone, but is in consequence of their 25 only having been supplied by persons who have represented that they alone are the persons entitled to sell them. As, I say, I cannot put the evidence of a few witnesses who have so dealt with the article against the large body of evidence I have had from people in the trade showing that the "Winser Interceptor" is, as such, known as an article of a specific design, type, or pattern, and I 30 have come to the conclusion that Messrs. Armstrong & Co., in supplying "Winser Interceptors," did not thereby intend to, and did not thereby, in fact, represent their goods to be the goods of the Plaintiffs. Having come to this conclusion it is not necessary for me to express an opinion as to the use of the word "Registered" with the number in this case, 35 and as to how far that representation would have disentitled the Plaintiffs to the relief they seek. But I am bound to say that I think, having regard to what they have done, they would have found it extremely difficult, if I had to determine the matter on that alone, to persuade me that I ought to grant an injunction, when any such connection between the name "Winser Interceptor" 40 and the name of the firm may, and probably has been, chiefly acquired by reason of this wrongful use of the word "Registered" and the number following. Under these circumstances I think in this case the Plaintiffs fail, and the action must be dismissed with costs. I think it is fair to the Plaintiffs to say that I do not think by the use of the 45 word "Registered" and the number they had any deliberately-formed intent to deceive the public; but a man must be deemed to know the effect of what he does, and must be deemed to know what the reasonable and probable effect of his dealing will be. Astbury, Q.C.-I am much obliged to your Lordship for that expression of 50 opinion. I understand my clients have given directions for that stamp to be discontinued. In the Matter of the Trade Mark of Clement & Cie. 5 IN THE HIGH COURT OF JUSTICE-CHANCERY DIVISION. Before MR. JUSTICE KEKEWICH. February 21st, 22nd, and 24th, 1899. IN THE MATTER OF THE TRADE MARK OF CLEMENT & CIE. Trade Mark.-Motion to rectify the Register.-Geographical term.Distinctive words.-Whether addition to mark.-Patents, &c. Act, 1883, sections 64 and 74. In 1888, C., trading as the Compagnie du Vin de St. Raphael, applied to register under the Patents, &c. Act, 1883, a trade mark consisting of a label, on 10 which the words "St. Raphael" occurred both in the name of the company and separately. The application was allowed and the label registered. In 1898, a company applied, by motion, for an order to rectify the Register by removing the mark, or by adding to the entry a disclaimer of any right on the part of C. to the exclusive user of the words "St. Raphael" or "Saint 15" Raphael." The Applicants alleged that there were several towns in France called "St. Raphael," and that there were vineyards at or near each of them, and that one of them was near a place called Bagnols, in connection with which name the Respondents had at one time used the words "St. Raphael," that the words "St. Raphael" were geographical, and were therefore not "fancy 20"words," but were at the time of registration primâ facie distinctive and open to the trade, and therefore ought to have been disclaimed under section 74 of the Patents, &c. Act, 1883. For the Respondents, it was alleged that they had no connection with any place called "St. Raphael," and that no reference to any such place was intended, and it was contended that the words were not an 25 addition to, but an integral part of, the mark. 30 Held, that the words "St. Raphael" were not shewn to be geographical, and, further, that they were not an addition to the mark, but part of it, and that no disclaimer was required. The motion was dismissed, with costs. Re The Smokeless Powder Company's Trade Mark, 9 R.P.C., 109, followed. On the 11th of May 1888, Clement et Cie., trading as the Compagnie du Vin de St. Raphael, made an application for the registration of the trade mark, a representation of which appears overleaf, in Class 3 for medicated wine. The trade mark was advertised in the Trade Marks Journal of January 8th 1890, and subsequently registered under the number 76,176. 35 On the 27th of April 1898, notice of motion was given on behalf of the Société Anonyme du St. Raphael-Quinquina for an order that the Register of Trade Marks might be rectified by removing therefrom the said trade mark, or alternatively by adding to the entry therein of the said mark a disclaimer of any right on the part of Clement et Cie. to the exclusive use of the words 40 "St. Raphael" or "Saint Raphael" or that such other order for the rectification of the Register might be made as to the Court should seem meet. Q In the Matter of the Trade Mark of Clement & Cie. 66 In support of the motion, an affidavit was made by Louis Perré, the general export agent of the Applicants, which alleged that they and their predecessors had for some years carried on business in France and other countries as manufacturers of and dealers in a specially prepared tonic wine, which they had, for at least 7 years, sold in very large quantities under the name St. Raphael 5 "Quinquina," and referred to their labels and trade mark, and alleged :(4) The name 'St. Raphael' is that of several towns or places in the Republic "of France, the best known being a town situate near Toulon and having a population of about 5,000 inhabitants. There are other towns of that name in "the following departments, viz. :-the Alpes Maritimes, Drôme, and the 10 66 66 Strengthening and digestive, this wine is an invigorating tonic, of most delicious taste, and more efficacious for convalescents and debilitated persons than iron or quinine. It is a sovereign remedy in cases of gastric debility, and anemia. DOSE: half a wine glass after the meals. The signature is repeated on the capsule which covers the bottle. Price 2 S. 6 D., or 30 S. dozen. Si Rafail "Gironde respectively. There are vineyards at or near each of the said towns." The Deponent also alleged that the Applicants had applied for the registration of their trade mark, and that the Comptroller had refused to register the same on account of the resemblance to the Respondents' trade mark. Paragraphs 7 and 8 of the affidavit were as follows:-"(7) The said Cement et Cie., who 15 "are still registered as proprietors of the said mark, are manufacturers of and "dealers in a wine which they sell under the name of Vin de St. Raphael' (wine from St. Raphael), and as a natural French wine. There was litigation "in France between them and certain other French merchants in the year 1885, "in which the said Clement et Cie, were held not entitled to any exclusive 20 66 |