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Meaby and Co., Ld., v. Triticine, Ld., and Others

and
In the Matter of the Registered Trade Mark, No. 52,389.

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“I never heard of Triticumina’ till a week ago. It did not strike me as “ like · Triticine '—that is, the name. I did not know what it was.” Then he referred to a conversation about it at the Hotel, and then he said afterwards :

“ We have bought • Triticine' from Goodall's from time to time long before Ő “ 1890, as far back as the autumn of 1885, and constantly since.” Again, I have

not the least doubt that he was giving what he thoroughly believed to be honest evidence, and he gave it very well. What I read last is what he said plainly in cross-examination. A man may be mistaken, but that he was

intending to give honest evidence I have no doubt. Then we come to Dunhill, 10 who speaks of a conversation with Goodall in December 1885 : “I went to “ Castleford Mill on business ; Goodall said, 'How is your mother ?' She had

come to spend the winter with me, not being well. He said, “Try some of

our • Triticine, you will find it a light food for her.' I got some of it. “My impression is, it was given to me. It was used for puddings and gruel. “ She died three years ago. I went to live at Whitwood about August 1886. “ The 'Triticine’incident was before that." In 1885, he lived about two miles from Castleford. Therefore, whether it was in 1885 or the first part of 1886 is not material for this purpose at all. He fixes the time by saying it was

before he went to live at Whitwood, which was in August 1886. Then he was 20 asked to fix the date of his going to Whitwood, and he proceeded to give his

reasons for it, which I did not take down, as it did not seem to be material to go into the history as to what his reasons were, but he did put it as before that incident took place. Then Cheeseborough used to sell “ Triticine" ten or twelve

years ago, but he could not fix any date. With respect to that evidence, the recol25 lection of a young man that something was done ten or twelve years ago, without

anything to corroborate it, is not entitled to very much weight, not because of disbelief of what he says, but because it is not accurate enough and not precise enough to give one any useful information. Then there was Tomlinson, who

spoke of hearing of it in 1848, and then he referred to seeing it on some boxes. 30 Then he fixed the date by saying that he bought his shop in 1890 ; he bought

it from Simpson, and “I was bothering with him two years." That, again, is not very precise, but his evidence, for what it is worth, is that some time before 1890 he had seen boxes with “ Triticine" upon them. I do not attach

much weight to his evidence. Then there is the evidence of Shaw, 35 who was Goodall's manager of their counting-house, and was with them

some time, and he produced those three books to which I have referred. He says, in cross-examination," he believes that 51.”—that is the ledger containing the word “Triticine" printed in the list of goods supplied, “is the

“ earliest.” He says, “I believe we had both Semolina and Triticine'going 40 “ from the time I went there. I will not pledge my memory. I do not know

“if the same thing was sold as "Triticine' and Semolina.' Then he knew Heppenstall. He said the earlier invoices had Semolina well as

Triticine.” “I cannot say what the material was ; that was not in my line."

Then he could not say when “ Triticine” was first referred to as a food for 45 infants and invalids. Then he remembered Tiplady and Hindle being travellers. Then he says,

“There has always been a little business in " Triticine' going on, bui not a very regular sale. I do not know what it “ amounted to. I have not been instructed to ascertain its amount. I cannot

say when the Infants' Food business began.” Then his attention is called to 50 the “Times” advertisement, and he is asked : “Had you ever heard before

“ then of Triticine' as food for infants and invalids?” His answer was, "Oh, yes;" and then be said what I read this morning, and will not read again, about such user as there was in 1890 and 1891, and so on. He was asked whether he could refer to any particular sale. He said he could not refer to

as

Meaby and Co., Ld., v. Triticine, Ld., and Others

and
In the Matter of the Registered Trade Mark, No. 52,389.

any particular sale in any of those years ; but, he said, in saying that, he does not say there was not any, but, on the contrary, he says, there must have been some, and might have been many, but they were not in his department. He adds: “For all I know, there might have been none, but they came repeatedly " in small quantities.” That is with reference to the last years. Then, he says, 5 6 Bottles have been used since I went there. They were not used when I went " there, they have only been recently. Can't say when first.” Now, I know the bottles were used at first ; because, as I said, Mr. Simpson proved the making of particular bottles now produced in the year 1885 for Goodall, and they never were made afterwards, and it is shown that they were used for the 10 purpose of putting in the article whatever the name of it was. Then, he said, “ The firm have only advertised “Triticine' recently that I know of. I have

seen show cards and tablets, but do not know of any with 'Triticine' on. I do not remember seeing any.' Then he did not know of any entries earlier than those in 51. The evidence does not quite stop there, because there is evidence 15 from the Plaintiffs' own witnesses, and in particular Green, that I think is important as bearing on this subject. Green was the man who attended to the purifiers in the mill. He was what was called the purifying man. He had general oversight of the mechanical part of the machines." The mill was “ started in 1885, and there was then no arrangement for taking off middlings 20 “or Semolina. In the very end of 1887 or beginning of 1888, Goodall and I “ had a conversation about Semolina. It was suggested it would not be a bad “ thing to put on the market in that condition.” That means at that stage of manufacture. “ Afterwards, Joshua Goodall said his father said it could not be “ done without destroying the character and quality of the flour. Ultimately, 25

we decided we could take out a small proportion without material injury to “ the flour, and we determined to take it off from the best of the four qualities “ of Semolina in the purifiers. I then made a tin spout which could be inserted “ into the flow of Semolina and so divert it. That was at the end of 1887 or “ the beginning of 1888. We did take it off from time to time. The first time 30 “ I heard the word “Triticine' was in 1890.” So that he goes back to that time. He heard the word used in 1890. “ It never was applied before then to “ anything in the mill, so far as I know. The article alluded to is middlings or “ fine Semolina." Then, he says, he never saw a bottle with a label like the one produced. “I remember bottles were used at the works. I cannot say 35 “ precisely whether they were like those produced or not. They had no labels

on them when I saw them. It was after the tin spout was made I saw tehm “ filled. J. H. Goodall said they were going round to the shops in Castleford. “ There may have been small parcels of Triticine'sold, but the quantity taken “ out to my knowledge could not have made a large sale. After taking it out 40 “ I believe we always sold a little.” That is Green's evidence in chief." Then he says, in cross-examination, “First remember • Triticine' about 1890. Some“ times I put it up for sale, at first in canvas bags and paper, afterwards in “ bottles, but I do not remember more-subsequently in card-board boxes. “ The sending of these out was under my supervision. I cannot say if after 45 “1890 I put the “Triticine' label on or not. Before 1890 it was sold as “ Semolina. The tin spout was in 1887 or 1888. From some time in 1890 on, “ it was sold as · Triticine. The mill never sold Semolina before 1887.” That is, as a common article of commerce. Then, in addition to that, there is the evidence of other witnesses called by the Plaintiffs-Oxley, who said he heard 50 of the “ Triticine” from four to seven years ago. If he heard of it seven years ago it would carry it back to 1890. Then Elston-I think he was the roller man of the Defendants. He said that he, when in their employ, had heard of “ Triticine" three or four years ago. Green said, as I have read, that he had

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Meaby and Co. Ld. v. Triticine, Ld., and Others

and
In the Matter of the Registered Trade Mark, No. 52,389.

heard of it in 1890 ; and Mr. Clarke, the Plaintiffs' Chairman said, from the inquiries he made, he found that “Triticine" had been sold for many years. Then, as regards Harper and Kettle, they say that they have often had inquiries

made for it ; and I wholly reject the theory that what they were referring to 5 was something which has taken place since the advertisement in November

1896. That is absolutely inconsistent with the evidence of one of them, who refers to as early a date as eighteen months ago. That is corroborated in the evidence on the part of the Plaintiffs' witnesses who support this view.

It comes to this, that I think that Mr. Green and Mr. Shaw, from different 10 sides of the Court, give an account which is an accurate account, that there was,

for a considerable time, a sale of what was taken off by the tin spout under the name of “Triticine.” There was no large sale, but small sales from time to time-nothing amounting to a large sale. Then that is the state of things when,

in the end of 1896, Goodalls desire to form a Company, and then they take for 15 it the name of the Triticine Company, and an advertisement appears in the

“ Times," on the 18th November, which causes the plaintiffs to complain. Hence this action.

Now, did the Company take the name of “ Triticine from the Plaintiffs' goods and with a view of passing off their goods as the Defendants' goods ? In 20 my opinion that is not proved. It is clear that the word was used and was

invented before the Plaintiffs' name was registered, or, for all that I know, even invented. It is not from that source, therefore, that it has been taken. The name is an older one. The article has been sold for a long time by the

Defendants under that name. It seems to me to be impossible to say that the 25 Defendants have taken that name from the Plaintiffs.

Then there is another matter. I am not at all satisfied myself that “ Triticumina " and " Triticine" are words that are likely to deceive. There is no instance of actual deception given. That is not fatal to the Plaintiffs' case.

There are many cases in which the probability of deception has been shown to 30 be such that the Court has acted upon that view, and an injunction has been

granted ; but I am left in the dark as regards really what has taken place with regard to what is suggested to have been deception. Kettle and Harper say that persons have told them that they had made some mistake about it. Where

are those persons ? As I understand the affidavits of those two persons, that is 35 during the last three years or something of that sort ; but if the plaintiffs'

view of the evidence is right, it is during the last twelve months only ; it is since the 18th of November 1896, and if the Plaintiffs desire to prove that anything was done which tended to deceive persons, they ought to call those

persons to show what the facts were and how it was that they were deceived. 40 Then, in the next place, the evidence of Harper and Kettle, and of other

witnesses too, shows that there were persons who did know the difference between the two, because some persons, at any rate, who went to the shops of those grocers and asked for “Triticine” would not have “Triticumina"

although it was pressed upon them. They were told, “ It is not the same, 45 “but it is the best.” Either those persons did know the difference or they did

not. If they did not know the difference, why did not they take what the agent, who knew “ Triticumina ” was what they wanted, praised as an excellent article, and offered to them? Why did they go away and refuse to take it if

they thought there was no difference whatever between the two, and they had 50 been misled by what had taken place ? Then it was suggested that they went

to Kettle and Harper, because they were the agents for the Triticumina Company. It is possible, but there is no evidence on which I can possibly come to that conclusion, because these articles are such as are sold by grocers and chemists to a very large extent, and it may very well be that the persons

Meaby and Co. Ld. v. Triticine, Ld., and Others

and
In the Matter of the Registered Trade Mark, No. 52,389.

who went there, who I have not seen and whose names I do not know, went there because Kettle and Harper were grocers to whom they regularly went, and not because they were agents of the plaintiff Company.

Under these circumstances, I come to the conclusion that the plaintiffs have not made out their case, and I must dismiss the action ; but, inasmuch as the i Defendants have chosen to keep me in the dark as to a great deal which I am sure would be very material for me to know in respect of these matters, I shall dismiss the action without costs. I think that the Plaintiffs have kept back witnesses who might have given me a good deal of useful information of a kind, which they have not done. I have considered whether this ought to 10 affect the question of costs, but I have come to the conclusion that I shall be doing justice between the parties if I dismiss the action without costs.

Then there is a motion by the Defendants to take the Plaintiffs' Trade Mark “ Triticumina" off the register. It has been based upon two grounds. One is this—that it is said that the name “ Triticumina” is a descriptive word ; and, 15 secondly, it is said that it is a word that really describes what is the subjectmatter of the Plaintiffs' patent, and it is common and well-known law that if a person has a patented article which is known by the name, he cannot by registering that name as a Trade Mark prolong his right to sell the article by the well-known name. As regards the question of patent, it is put upon this. The 20 Plaintiffs, or rather the Plaintiffs' predecessor, Mr. Meaby, as far back as October 1886, first of all inserted an advertisement. There are the Royal Arms at the top, and then it says : Meaby's 'Triticumina' (Patent) Entire Wheat Meal “ Bread and Prepared Wheat Meal.” Then it goes on to say: “Triticumina" (Patent). This process makes the perfection of Whole Meal and produces a 25 perfect Bread of Health.” He therefore describes here what is called

Triticumina” as a patent, and refers to it as such. I mention that because that is the earliest advertisement on the subject referring to it as a patent. The representation of it as a patent has continued down to the present time. There is a good deal of evidence on the subject, but I refer, as bringing it down 30 to the present time, to the sheet which is supplied by the Company to their various agents, framed and glazed to be put up in their shops. At the top there is a reference to : “ By Royal Letters Patent." Then there are the Royal Arms, and then below comes the word “ Triticumina.” Then below : “ Entire Wheat Meal Bread.” Now, it is said that the “ Triticumina "does not to take 35 Mr. Bousfield's words-describe any definite article at all ; it connotes a class of products solely emanating from Meaby and Co. If that is a correct description of it, what on earth is the meaning of describing it as “patent"? Either the statement that it is patent is true, or it is not. If it is true that it is a patent, there can be no Trade Mark for the name of the patented article ; but if it is not 40 true that there is a patent with respect to it, what is the position of the Plaintiffs who represent throughout that it is a patent? I do not intend finally to decide the case upon this point, because I can deal with it on other grounds ; but I am by no means satisfied that a «person who describes his article as patented can have a Trade Mark for the name of that article, whether the 45 statement is true or whether it is not. It is clear he cannot if the statement is true, and I do not see how a person who represents untruly to the public that his article is patented can be better off when his statement is false than when it is true ; but, as I said, I do not intend to decide the question upon this particular point, because the second point is one which is clear and, to my 50 mind, perfectly conclusive ; that is the question whether this name “Triticumina” is descriptive or not. “ Descriptive” is the phrase generally used, but we must turn to the Act of Parliament for the precise phrase. This was registered in 1886, and therefore the Act which applies to it is the Act of 1883, and there is

Meaby and Co. Ld. v. Triticine, Ld., and Others

and
In the Matter of the Registered Trade Mark, No. 52,389.

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the description of what a Trade Mark may be. It is : “For the purposes of this “Act a Trade Mark must consist of or contain at least one of the following "essential particulars” (then, leaving out the immaterial part, I come to this)

“a distinctive device, mark, brand, heading, label, ticket, or fancy word or 5 “words not in common use." I do not see that “ Triticumina" was in common

use at that time at all. The question is whether it is a “ fancy word or words." Now, with respect to that, the decisions are perfectly clear. I only need refer to the well-known decision in Van Duzer's case, where the whole thing was

thoroughly gone into, the law clearly laid down, and from which there has not, 10 so far as I am aware, been the slightest dissent expressed in any Court from

that time to this. I am not going to read through that case now, as I have had to do so myself before, and it is familiar to everyone ; but, reading the full judgments of the learned Judges from beginning to end, what we get to is this.

Lord Justice Lindley says : “ To be a fancy word I think the word must either 15 “ have, to ordinary English people to whom this Act of Parliament is addressed,

“no meaning like the word 'Eureka,' or the word 'Aeilyton'; or, if it has any “ meaning at all, it must be obviously meaningless when used as a Trade Mark. “ If it is not obviously meaningless, it appears to me it has not the characteristic

“ of a fancy word.” Lord Justice Cotton had said the same : “ To be registered 20 " it must be a fancy word ; and, in order to come within that description, it

“ must be a word which obviously cannot have reference to any description or “ designation of where the article is made, or of what its character is.” Then Lord Justice Lopes said: “I think a word to be a fancy word must be obviously

“ meaningless as applied to the article in question. I think it must be a word 25 “ fanciful in its application to the article to which it is applied in the sense of

“ being so obviously and notoriously inappropriate as neither to be deceptive

nor descriptive, nor calculated to suggest deception or description.” Then I read what Lord Justice Lindley said about it. His definition was qualified

rather, by his consent, because Lord Justice Cotton says at the end : “I think I 30 “ should correct, with Lord Justice Lindley's approval, or his consent, the

“ definition he gave. It should run, not obviously meaningless,' but obviously “ not intended to be descriptive'"; and Lord Justice Lindley says : “Perhaps “non-descriptive would be better." I cannot add anything to that. That has

been accepted as the law from that time to this. There always may be a 35 question in any particular case in what way a particular word is used. The

“Bovril" case, one of the most recent cases on the subject which was referred to, was one in which the Court came to the conclusion that the word “Bovril” was not descriptive, but the word in each case must be dealt with on its own merits ;

and the reason why I cite Van Duzer's case is because it lays down the 40 law,-the principle to be applied with respect to each word, as to whether it is or

is not a proper Trade Mark. The phrase used is obviously not intended to be descriptive. Does “ Triticumina" come within that? Is it obviously not intended to be descriptive ? The conclusion I come to is that it is obviously

intended to be descriptive, and therefore, it is the exact opposite of what is a 45 proper Trade Mark. I do not think we need go farther than to look at the

description of it contained in the advertisement of the 30th of October. I have not had the advantage of Mr. Meaby's or Mr. Farnworth's evidence upon the point; but, reading the advertisement that their firm published shortly afterwards,

it is quite clear what “ Triticumina” means. It is derived from “ Triticum' 50 wheat; which the firm has taken as their telegraphic word, and as their short

address. Then to that the word “ina " is added. There are many cases which show that the mere addition of such a suffix as that is not sufficient to make the word to which it is added a fancy word ; and, more than that, the word here is obviously descriptive. Just look at this advertisement :“Important

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