J. and J. Colman, Ld. v. Farrow and Co. mark of a Bull or Bison charging. That registration was refused on the opposition of the present Plaintiffs. Then the Defendant registered another mark, which he called the Globe and Griffin mark, which consists of a figure of a griffin by a globe, with the words "Griffin" at the top, and "Globe" at the 5 bottom, in large and conspicuous letters. Nothing turns in this action, as far as I am concerned, on Trade Marks. The question which arises is whether the Defendant is not now making up his goods in such a way that there is a reasonable probability that they would be mistaken for the goods of the Plaintiffs. 10 Immediately after the Defendant registered his Trade Mark he began to make up his mustard in packages consisting of a tin case with a label round it. I have one before me. It is common ground that mustard is generally sold in packages of that shape, and with yellow labels round. Therefore, in that he was doing a thing he had a full right to do. First of all, he chose a label which 15 has not been complained of. It contains on one part of it, the most important part of it, his Trade Mark in a very conspicuous shape, and on an oval shield, with a margin round it, the name "Farrow's" at the top and the word " Mustard " at the bottom, and "D.S.F. Genuine." The Plaintiffs have allowed that to go on for seven years, and if they ever could complain of it, which I do not think 20 they could, certainly it would be too late to complain now. So matters went on until June of the present year. In June, the Defendant procured a new label to be made. Now, as part of the history of the case, he states that the reason for doing so was, that on one part of the previous label there appeared the Royal Arms, and his attention was called to that, and he found that it was 25 illegal, or, at any rate, improper, for him to have those Arms on the label, and he made up his mind to have that altered. That was perfectly right-perfectly legitimate. He took advantage at the same time, as he says, to give directions that above the Arms which he proposed to substitute for the Royal Arms there should be put a letter and figure Al. That, again, is perfectly unobjectionable; 30 but he appears also to have given general directions for an alteration in the label. Why this should follow is not clear to my mind, but I will state what he himself says with regard to that :-"Some months ago it was suggested to me "that I was not entitled to use the Royal Arms on my label, and after some "consideration I decided to place on the label of my double superfine mustard, 35"instead of the Royal Arins, part of the Arms of the Corporation of Boston, "and at the same time I also decided to adopt the description Al for my "mustard. I accordingly instructed my wife, who takes an active part in the management of my business, and who has the sole management of the "Printing Department, to prepare for me a new label. I told her to prepare a 40" label having thereon part of the arms of the Boston Corporation and Al, but "to be otherwise based upon my old label (being Exhibit F.15) with such modi"fication therein as she considered desirable; but I impressed upon her to be “sure and not interfere with the rights of any other manufacturer." Then I have the affidavit of Mrs. Farrow, and she says that she, having received these 45 instructions, instructed the designer and engraver of the Defendant to prepare the label; for the Trade Mark of the Defendant to appear on both sides of the label; also that the name of Farrow should appear in bold type all round the tin, so that there could be no mistaking the name of the manufacturer. Then we come to the designer of the new label. He states he received such instruc50 tions, and he says: "In instructing me to prepare such new label, Mrs. Farrow impressed upon me that it was the wish of herself and her husband that I "should be careful not to interfere in any way with the rights of any other "manufacturer, and they never suggested to me for one moment, in any manner whatsoever, that I should imitate or attempt, in the slightest degree, 55" to copy or imitate any label of the Plaintiffs or of any other manufacturer." Pausing there for a moment, I ask myself what has been done on those instructions? The former label, on which the designer of the new label was to work 66 66 66 J. and J. Colman, Ld. v. Farrow and Co. as a basis, had certain distinctive features upon it. Every one of those distinctive features, with the exception, perhaps, of the word " Farrow," has been either abolished or modified in the direction of resemblance towards Colman's label. If these instructions were really given as said, and they were very proper instructions to give, I can only say that the Defendants have been most 5 unfortunate in the designer whom they employed to carry out those instructions. He tells us this: "I am well acquainted with the Plaintiffs' labels "(many of them having been designed and engraved by me), and with those of many other manufacturers, and I took particular care in designing the said new label for the Defendant to avoid copying, or imitating in any manner 10 whatever, any of the Plaintiffs' labels or those of any other manufacturer, and "I was astonished when I heard that the Plaintiffs complained that the said "new label was an interference with those rights." All I can say is, having the old label and the new one before me, I am not less astonished than this gentleman is to find the result of the care which he took. 66 66 66 15 It seems to me that in almost every direction there has been made a close approximation to the label of the Plaintiffs, looking at the two side by side, and without going into any of the evidence of the experts and others, which has been read on both sides-looking at it simply as a matter judging by the eye, and in a case of conflicting evidence that is what one must ultimately come back to, 20 there is a reasonable probability that at the trial a case of deception will be made out. Then the Defendant has still his old label to fall back upon, which has been long used, and there is no objection to his making the modification, which is necessary or desirable, so long as he does not come nearer Colman's label. It seems to me, the proper course to take in this case, is to grant an injunction to restrain the Defendant until the trial from using the label complained of, or any other label which would lead the public to believe that the goods sold by the Defendant are the goods of the Plaintiffs. 25 Subsequently, by consent, an order was made for a perpetual injunction in the 30 above terms, and for the Defendant to pay 201. damages and the costs of the action. In the Matter of Miller's Patent. 5 IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE ROMER. December 3rd and 4th, 1894; March 4th and 5th, 1895; July 14th, 21st, and 24th, 1896; and January 12th, 13th, and 26th, 1898. IN THE COURT OF APPEAL. Before THE MASTER OF THE ROLLS, and LORDS JUSTICES RIGBY and IN THE MATTER OF MILLER'S PATENT. Patent for the manufacture of an alloy.-Petition for revocation.-Antici10 pation.-Same alloy sold before date of patent.-Issue whether composition of last-mentioned alloy could have been then ascertained by chemical analysis. In 1890, a patent was granted to M. for the manufacture of an alloy from certain metals, including bismuth, in the proportions stated in the Specification, and for the use of sal-ammoniac as part of the process. M., who was an American 15 citizen, was trustee of the patent for an American Company or Companies. H. presented a petition for revocation of this patent. After the petition had been several times before the Court, it was established, to the satisfaction of the Judge, that the patented alloy had been sold in England before the date of the patent. The American Companies were then desirous of intervening, and of raising the 20 further point that the said sales of the patented alloy before the date of the patent were not a prior publication of the invention, because at the dates of the sales a competent chemist, analysing the alloy, could not have discovered the presence of bismuth, bismuth being alleged to be the important ingredient in the alloy. This point was tried before the Judge separately, with oral evidence. 25 30 Held, that if reasonable care and reasonable skill were used by analysts before the date of the patent, the constituents and the proper proportions of the constituents of the alloy sold could have been ascertained, and therefore the patent was anticipated, and an order for revocation was made; but the registration of the order was suspended, pending an appeal. The Respondents appealed, but subsequently applied to the Court of Appeal for leave to withdraw the appeal. The Petitioner thereupon asked that the appeal might be dismissed with costs, and this was done. |