LONDON: PRINTED FOR HER MAJESTY'S STATIONERY OFFICE, PUBLISHED AT THE PATENT OFFICE, 25, SOUTHAMPTON BUILDINGS, 1899. 5 REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. EDITED BY JOHN CUTLER, ONE OF HER MAJESTY'S COUNSEL. Vol. XVI.] WEDNESDAY, JANUARY 18, 1899. [No. 1. Before THE JUDICIAL COMMITTEE of the PRIVY COUNCIL. Present: LORD HOBHOUSE, LORD MACNAGHTON, LORD MORRIS, AND SIR RICHARD COUCH. December 10th, 1898. IN THE MATTER OF ADAM'S PATENT. Patent.-Petition for prolongation.-Motion for relief in consequence of the Petition not having been presented within the time prescribed by the 25th Section of the Patents, &c. Act, 1883.-Motion refused. On the 22nd of December 1884, a patent (No. 16,817 of 1884) was granted to 10 Robert Adams for "improvements in the method of opening and closing fan"lights, ventilators, and analogous articles, and in the fittings and appliances in "connection therewith." The Patentee was desirous of presenting a petition for prolongation of this patent, but omitted to do so within the period prescribed for that purpose by the 25th Section of the Patents, &c. Act, 1883, viz., at least 15 six months before the time limited for the expiration of the patent. On the 8th of December 1898, the Patentee gave the following notice of motion : "Notice is hereby given that the Lords of the Judicial Committee of the "Privy Council will be moved on Friday the 9th day of December 1898, at In the Matter of Adam's Patent. "10.30 o'clock in the forenoon or so soon thereafter as Counsel can be heard by "Mr. J. C. Graham as Counsel on behalf of the above-named Robert Adams, "that the said Robert Adams may be excused from compliance with the require"ments of the rules contained in the Schedule annexed to the Order in Council, "dated the 26th day of November 1897, relating to proceedings before the 5 "Judicial Committee, under the Patents, Designs, and Trade Marks Act, 1883, "Section 25, and that such directions may be given as to the procedure by the "said Robert Adams, under Section 25 of the said Act, on the presentation of "this petition to prolong the term for which the said Letters Patent were granted as to the Lords of Committee may seem just and expedient.” 66 On the 10th of December 1898, the motion came on for hearing before the Judicial Committee. J. C. Graham (instructed by Greenop & Son), appeared for the Patentee. 10 Graham.—This is an application by Mr. Adams to be relieved from the consequences of not having applied within proper time. The Petition should have 15 been filed on the 22nd of June last, so that he is more than five months after time. His reasons are set out shortly in an affidavit. 66 Lord HOBHOUSE.-But have we any power? Graham.-Yes. The 7th of your Lordships' rules is this :-"The Lords of "the Committee may excuse petitioners and opponents from compliance with 20 any of the requirements of these rules and may give such directions in "matters of procedure and practice under section 25 of the Act as they shall "consider to be just and expedient." One of the rules is that he must file his petition six months before the expiration of the patent. The 25th section of the Act is "A Patentee may, after advertising in manner directed by any 25 "rules made under this section his intention to do so, present a petition to Her Majesty in Council praying that his patent may be extended for a further "term; but such petition must be presented at least six months before the time "limited for the expiration of the patent." But sub-section 6 says:-"It shall "be lawful for Her Majesty in Council to make from time to time rules of 30 "procedure and practice for regulating proceedings on such petitions." 66 Lord MORRIS.-But that is subject to the enactment. Lord HOBHOUSE.-We can dispense with our own rules, but not with the Act of Parliament. Lord MACNAGHTEN.-I am afraid we are powerless. 35 Lever Brothers, Ld. v. Bedingfield. 5 IN THE COURT OF APPEAL. Before THE MASTER OF THE ROLLS and LORDS JUSTICE CHITTY and VAUGHAN WILLIAMS-November 16th, 17th, and 26th, 1898. LEVER BROTHERS, LD. v. Bedingfield. Action for infringement of Trade Mark and passing off-Endeavour to pass off-No injunction as to Trade Mark at trial but injunction as to passing off.-Cross appeals.-Judgment entered for Defendant with costs of appeal but no costs of action. In 1886, L. Brothers registered a Trade Mark in Class 47 for common soap, 10 which consisted of a label divided into compartments and having the word "Sunlight" prominently in a compartment at the top and the word "Soap" on a scroll underneath, with flowers round about the scroll, and in other compartments letterpress. They also at the same time registered a similar Trade Mark in Class 48 for perfumed soap. In 1894, L. Brothers, Ld., who 15 had become the registered proprietors of the above-mentioned Trade Marks, registered another Trade Mark in Class 47 for soap, which consisted of a label very similar to those above-mentioned, but having the figure of a maid hanging out clothes to dry in a compartment which was blank in the labels previously registered. In 1897, B. commenced to sell soap in boxes having on the top a 20 label also divided into compartments, which, however, were not identical with those in the labels of L. Brothers, Ld.; this label had the words "Red Maid" prominently in a compartment at the top, and the word "Soap" on a scroll underneath, with flowers round about the scroll. The colours in this label were to a great extent the same as those in the labels of L. Brothers, Ld., but 25 were differently arranged. L. Brothers, Ld. commenced an action for infringement of their three Trade Marks above described and for passing off. Held, at the trial, that although the idea of some parts of the Defendant's label must have been taken from the Plaintiffs' Trade Marks, so much had not been taken as to constitute an infringement of any of the Plaintiffs' Trade Marks; 30 but that the conduct of the Defendant showed that he had endeavoured to pass off his goods as and for the goods of the Plaintiffs, and that having regard to that fact the Plaintiffs were on the authority of Reddaway v. Banham, 13 R.P.C. 218, entitled to an injunction on the second part of the case. A special order as to costs was made. 35 The Defendant appealed as regards so much of the decision as related to the passing off. There was also a cross appeal by the Plaintiffs as regards the decision on the question of Trade Mark. Held, by the Court of Appeal, that the Defendant had not infringed the Plaintiffs' Trade Mark, and, as regards the passing off, that, as in the opinion 40 of the Court the Defendant's wrapper was not calculated to deceive, though it must in various respects have been taken from the Plaintiffs' wrapper, there was no ground for an injunction, and judgment must be entered for the Defendant. A special order as to costs was made. Reddaway v. Banham explained. Lever Brothers, Ld. v. Bedingfield. On the 10th of September 1886, Lever Brothers, soap manufacturers, registered Trade Marks No. 56,636 in Class 47 for common soap and No. 56,637 in Class 48 for perfumed soap respectively. These Trade Marks consisted of identical labels, a representation of No. 56,636 being given below. On this question we may quote Mr. Cross's Lecture at the INTERNATIONAL HEALTH EXHIBITION of 1884:- Hach of the evil complained of is due to the want of knowledge amongst purchasing consumers, whe Extract from "Soap and Candles," by Dr. Carpenter, B.A., B. Se. |