The Cellular Clothing Company v. Riley. The Cellular Clothing Company v. Maxton and Murray. Cross-examined.-I do not know that I can produce any letter which has been sent to us asking for cellular cloth, but if I had time I might find one. The word is quite commonly used in our business. In regard to the cloth, in our correspondence we designate it by numbers, not by name. The ordinary order for cloth would be in the form of a number. I cannot mention any 5 particular case in which our goods were offered to the public under the name "Cellular" either directly or through an agent, except in America. Henry Gray :-I am a draper in Broad Street, Aberdeen. I have been in business on my own account since 1867. I do a large retail trade in general drapery. I have also a separate warehouse, and carry on a ready-made trade in 10 general clothing and drapery. I purchase the greater part of the goods in connection with the business. I am also a licensed appraiser, and am extensively occupied in valuing stock for the purpose of transference and valuation. I have also had considerable experience in assessing loss caused by fire for insurance purposes. In the course of my trade I have come across cloth 15 known as cellular cloth. It is an open shirting which we find in the piece, but it may be an underclothing. It is cloth composed of small cells. In my experience, cellular cloth is not identified with the manufacture of any particular firm. My experience is that cloth which is in fact cellular is called cellular. If I were asked to supply cellular cloth by a customer, I would never 20 think of the Pursuers' Company in connection with the matter. I never heard of the Pursuers' Company until this case begun. I have known cellular cloth in the trade for eight or ten or perhaps twelve years. Cross-examined.-I do not think I can produce any advertisement or any price list in which I have used the word "Cellular" as applicable to cloth. I do 25 not think I can produce any order which I ever received for cellular cloth. We do not receive many written orders; our orders are mainly received by customers coming in. (Q.) Do you say that" Cellular" merely describes any open porous cloth? (A.) "Cellular " is just cellular. There are a good many different cellular cloths in the market. They are sold under different names. When I 30 bought the cloth from travellers, I bought it as cellular. I would ask them to show me their shirtings or whatever it was, and say I wanted to see their cellular shirtings. The use of the word "Cellular" would come from me, but they would understand distinctly what I meant, because cellular is just cellular cloth. My customers would not, I think, ask for cellular goods by that name; 35 they would say open cloth, such as worn by those playing football, or something of that kind. The customers do not know the names, but they know the cloth. If a customer came in and described the cloth to me, I would probably say to my assistant, "That is cellular shirting," and tell him to bring it. I have used the word "Cellular " in my business freely, but I would not be likely to write it. 40 To the Court.-I cannot recall any instance of a customer coming into my shop and asking for cellular cloth. Robert Allan:-I am chairman of J. and R. Allan, Ld., and carry on business in South Bridge, Edinburgh. The firm carry on a large business as drapers, outfitters, carpet and house-furnishing warehousemen. I know cellular cloth. 45 I came to know it three or four years ago, and have worn it myself. I understand the term "Cellular" as applied to cloth to refer to the make of the material. It does not refer to any particular maker. Cellular is, I think, a good description of open woven cloth. I only heard of The Cellular Clothing Company when I heard of this case. Cross-examined.-Cellular cloth was never offered to me in business. My only experience in connection with cellular cloth is from my own personal wearing of it. I got it from Stark Brothers. 50 Robert Maule :-I am a partner of the firm of Robert Maule and Sons, furnishing drapers, woollen manufacturers, and upholsterers in Princes Street 55 and Hope Street, Edinburgh. I know cellular cloth. The word "Cellular" quite The Cellular Clothing Company v. Riley. The Cellular Clothing Company v. Maxton and Murray. describes the cloth. It is a sort of leno or gauze production. The word "Cellular” is, in my opinion, appropriate to the structure and texture of the cloth; I do not know a better. We get the cloth which we sell as cellular cloth from other makers than The Cellular Clothing Company We also buy from The Cellular 5 Clothing Company direct. I do not associate the expression "Cellular Cloth" with the goods of any particular makers. When cellular cloth is asked for by our customers we do not understand them to mean goods of any particular makers. We understand them to mean the stuff, and they get the stuff. Cross-examined.-I have known the Pursuers' Company, I should say, about 10 five or six years. I have seen their advertisements. I am aware that they advertise their cloth extensively as cellular cloth. Other cloths of a kindred description have been offered to us by other people. I cannot at the moment mention any instance in which these cloths have been offered to us by other people under the name "Cellular"; we were not particular, about the name so 15 long as we got the cloth. I cannot mention any instance where cloth of that class has been put on the market under the name Cellular," except by the Pursuers' Company. The remaining witnesses for the Defenders were John Jelly, John Smith, Daniel Reid, David Gray, John Currie, and James P. Work, the salesmen or 20 partners of firms who had transmitted orders to the Defenders for cellular goods after they had received pattern books the same as the pattern book supplied to Brown, of Kelso, on which the present proceedings followed, and each of whom deposed that he had not, in ordering goods from the Defenders, expected to get anybody else's make of cloth than the Defenders' own. The 25 Defender Maxton deposed that he did not manufacture cloth, but sold the cloth of other manufacturers under the name "Cellular," and that the persons who bought from him knew this. The Lord Advocate (Graham Murray, Q.C.) and Crabb Watt (instructed by Clark and Macdonald, S.S.C., agents for Salaman, Fort, and Co., London) 30 for Pursuers.-Under the Trade Marks Acts, especially the Statute of 1888, Section 10, it would be impossible to register the word "Cellular." It is practically impossible to register any name not a fancy name as applied to the goods. But the common law as to Trade Marks remains as it always was, and the underlying principle is that A will not be allowed to sell his 35 goods as the goods of B. Where the word is descriptive it only puts a heavier onus on the party claiming it as exclusively his. Some descriptive words like "soft" or "hard" cannot, of course, be appropriated. The more natural the word, the more generally the world will use it to describe the article. But once you can show that you have captured the word, it is no matter 40 as regards the right of the capturer to exclude others from using it that it is descriptive. Reddaway (Reddaway v. Banham, 13 R.P.C. 218, L.R. 1896, App. Cas. 199) made belting of the camel-hair of commerce and called it "Camel-hair." He did not know that the camel-hair of commerce really came off the camel. Banham also made his belting of camel-hair and called it "Camel-hair Belting," 45 but the Court restrained him because they thought the public would be deceived. [Lord KYLLACHY.-I thought the Jury merely found that there had been misrepresentation. My impression of Reddaway's case is that it went no further than a number of cases we are familiar with, as to the use of a name, for instance the "Stone Ale" case (Montgomery v. Thomson, 8 R.P.C. 361, L.R. 1891, App. Cas. 50 217)]. Reddaway's case goes further. "Stone "does not describe a property of the ale. But all belting of this particular kind in question in Reddaway's case is camel-hair belting. [Lord KYLLACHY.-If Lipton, the grocer, say, makes a great reputation, and somebody opens a shop next door bearing the name Lipton, he may be stopped because that might be a fraud.] That rests on a different 55 principle. You are entitled to use your own name until fraud comes in. in Reddaway no fraud entered into the ground of judgment. [Lord But 66 66 The Cellular Clothing Company v. Riley. The Cellular Clothing Company v. Maxton and Murray. KYLLACHY.—If you establish that you will relieve one of my difficulties.] We ask your Lordship's attention to the questions put to the jury (13 R.P.C. 221) :— '(3) Do the Defendants so describe their belting as to be likely to mislead 66 purchasers and to lead them to buy the Defendants' belting as and for the "Plaintiff's belting? (4) Did the Defendants endeavour to pass off their goods 5 as and for the Plaintiff's goods so as to be likely to deceive purchasers? The learned Judge considered only the first three questions necessary. He added the fourth at the instance of the Plaintiff's Counsel, who knew he had a strong case of fraud against Banham in addition. [The judgments of the Lord Chancellor and Lord Herschell in Reddaway's case were then read.] Lord 10 Herschell finds that upon the facts relative to questions Nos. 1, 2 and 3, Reddaway was entitled to relief. [Lord KYLLACHY.-But it is fraud which is the ground of redress against the use of a purely descriptive name having acquired a secondary sense. In this view you require to satisfy me that apart from fraud a descriptive word ever acquires a technical and exclusive 15 sense. What is your view of this? Alcock, when using his own name, still calls his plasters "porous plasters," and whenever a rival trader calls his plasters "porous," Alcock comes down on them for a period of ten years and so clears the market of rivals. Do you think a jury would listen to that, whatever the amount of evidence was?] Yes, on the authority of Reddaway v. Banham 20 and the judgments of their Lordships based on the first three findings. There are always two stages in such cases. With the first stage fraud has nothing to do; that is the stage of a man acquiring the right in the market to a particular name. The sole consideration is whether he has acquired the name in the market. The question of fraud is a different affair, and has only to be con- 25 sidered after there has been a finding as to the name having been acquired. Assuming that the Pursuers have captured the market, then the Defenders come and use this descriptive word, we assume innocently, and then we invoke The Singer Manufacturing Company v. Loog, L.R., 18 Ch.D., and Lord Justice James' judgment at page 395, quoted and approved by Lord Macnaghten in 30 Reddaway's case. That is to say, the Defenders are not entitled to do anything whereby, without making a false representation themselves, they enable a purchaser from them, to whom they have told no lie, to tell a lie or make a false representation to somebody else. That is the position of the Defenders. They place before a man a catalogue with the word "Cellular" at the top; 35 "Cellular" means our make; and therefore the buyer, seeing that name, concludes that when he asks for a "Cellular" shirt that he is to get ours. The Defenders do not make the goods, they are middlemen supplying the makes of many makers, and presumably buyers think they supply our make too. That is equivalent to stainping the goods with "Cellular." The sending out of 40 a pattern book with the word "Cellular" attached to the patterns is just as if the goods had been stamped with the word "Cellular." In Powell v. Birmingham Vinegar Brewery Company, 13 R.P.C. 235, the infringer pleaded that when he called his sauce "Yorkshire Relish," that was the simple truth and he was entitled to tell it. But the Court disallowed this, because the 45 public would not get what they expected when they asked for "Yorkshire "Relish." [Lord KYLLACHY.-But "Yorkshire Relish was a more or less fanciful name.] Still it was made in Yorkshire in both cases. The case is in the same category as "Stone Ale" and "Glenfield Starch." It applies to this case, because people getting "Cellular" from the Defenders do not get what, 50 ex hypothesi, they expect to get. Then we have not allowed our name to become publici juris as in Stuart v. Val de Travers Paving Company, 13 R. 1. There are dicta in the opinions there that will not hold with Reddaway, but the decision went on the ground that Stuart had slept on his rights and permitted other people to call their stuff by his name. Now as to the facts :-In the first 55 place, the word "Cellular" is not descriptive; it is only suggestive. It is not a The Cellular Clothing Company v. Riley. The Cellular Clothing Company v. Maxton and Murray. having been It is only in evidence that [Lord KYLLACHY.-That is a descriptive name. popular but a scientific word. Mr. Haslam makes a new arrangement of the threads composing his cloth and seeks about for a name, and hits upon "Cellular." [Lord KYLLACHY.-I think it is proved that no person thought of applying Cellular" to cloth until the Pursuers did it.] Further, the 5 Pursuers built up a big trade on the word "Cellular." Ten special customers or agents, and twelve independent traders from the important towns in the country, testified to the extent of our trade and the exclusive association of the name. Millions of advertisements have been published all over the world, and in each of them the prominent feature is the word "Cellular." [Lord KYLLACHY.— 10 I was struck with the fact that three big houses had applied different names to such material.] There is not a scrap of evidence on the other side put in to say that anybody but ourselves has been using this name. All that is said on the other side is that "Cellular" is an appropriate name to call cloth by. Further, the trade recognised that the name belonged to us by a series of injunctions and 15 undertakings, the first of which was in 1891, three years after 1888, in which latter year the Company was registered. No case of "Cellular used by other people has been made on the Record. this is brought out and that without notice to us. was only to illustrate the proposition that "Cellular 20 But with regard to what appears in the Defenders' Statement of Facts, do you say that Scotland is to be treated as separate from the rest of the United Kingdom in a question of this kind?] Certainly not. [Lord KYLLACHY.-If you were bound to show that in Scotland you have acquired the right to that name or association, have you proved that?]__ I think so. We have at least as 25 much evidence in our favour as against us. But if any such distinction between different parts of the kingdom were to be countenanced, you never could acquire a right to the name. Wick or Tobermory, where there would be no sales, would be a place to burst every trade name or patent. The wholesale trade is almost entirely in English hands. There is no separate Scotch 30 market in this class of goods. Besides, no sound reason can be given for adopting the name "Cellular in this trade since so many other names might be taken without encroaching on anybody else. [Lord KYLLACHY. -I accept the authority of Reddaway. Apart from authority I should consider it rather a startling decison. I am not satisfied that when the judgments of the House of 35 Lords are carefully examined, the majority of the Court were prepared to approve of the verdict of the jury. The case was, however, peculiar in this respect camel-hair was a proper and natural word to apply. It therefore had no element of ingenuity, novelty or arbitrariness, or fancifulness. In this case no one can say that "Cellular" was the natural term to apply to the cloth. 40 There was therefore an element of ingenuity in the discovery, and fancifulness in the application of this name drawn from physiology and botany to the manufacture of cloth. In such case, is not the onus of proving acquisition of exclusive right to the name lower than the onus in such a case as the "Camel-hair" case, where, if I had been on the jury, I should apart from authority have had 45 difficulty in accepting the proof as sufficient. Sitting as a jury, where you have an appropriate name descriptive of an article, I should be unlikely to accept any amount of evidence to convince me that the name had acquired a secondary sense.] Your Lordship has put the very point that arose in Parsons v. Gillespie, 15 R.P.C. 57, L.R. 1898, App. Cas. 239. 50 Shaw, Q.C., and T. B. Morison (instructed by P. Morison, S.S.C.) for the Defenders. The summons as drawn was directed against the whole world to prevent it from using the word "Cellular" in connection with cloth or clothing. That was a startling demand. The averments did not fall short of actual fraud, but those averments have been disproved. Passing off was really out of this case 55 Therefore Lord Justice Fry's remarks, "There is another observation which I "desire to make," In re Dunn's Trade Mark, 6 R.P.C. 379, applied. The The Cellular Clothing Company v. Riley. The Cellular Clothing Company v. Maxton and Murray. Court held there that "Fruit Salt" was, even in the combination there n question, a descriptive term, and excluded by the terms of Section 10 of the Statute of 1888. The analogy was a strong one as against the appropriation of the single adjective "Cellular." Reddaway's case is in favour of the Defenders. The two parts of that case important in the present were the findings of fact 5 which involved fraud, and the terms in which the judgment of the House of Lords was pronounced. After that judgment Banham could have called his belting" Banham's Camel-hair Belting.' The conclusions of the present action did not admit of that. The demand was against the use of "Cellular" in connection with any cloth or clothing not the cloth or clothing of the Pursuers' 10 make. Lord Halsbury's judgment proceeded on the doctrine of "passing off." [Lord KYLLACHY.-You may assume that I am satisfied of that. He would have affirmed the fourth issue, but he would not have affirmed the verdict but for that.] It was not the case that Lord Herschell differed. He and Lord Halsbury were in agreement. Lord Herschell says, at page 200 [reads from "The name 15 "of the person," &c.]. [Lord KYLLACHY.-May this case not occur, where a person quite innocently makes an erroneous representation not knowing of the secondary sense of the term used, and yet, it being proved that the term had a secondary sense, he may be interdicted from using the term?] We should demur to that. In Reddaway's case the Court were of opinion that it was either a 20 case of deliberate deception or of deception which ought to have been foreseen by a careful trader. [Lord KYLLACHY. --Trade Mark is one department and trade name another. Trade name is common law and depends upon representation. But I do not see that there may not be innocent representation which might, if there was an intention to persist in it, justify interdict. It 25 is still representation, innocent or fraudulent. But where the name is used in connection with words which prima facie take off the misrepresentation, then the common law will not interfere apart from fraud. That is my impression, but I will consider this matter.] The case of Parsons v. Gillespie ("Flaked Oatmeal"), 15 R.P.C. 57, is also in Defenders' favour. As an 30 adjective "Flaked" was very little different from "Cellular." At any rate it was not so remote from ordinary experience as to make the onus shift. Both “Flaked” and “Cellular " were derived from nature—“ Flaked" from snow and "Cellular" from tissue. The term "Granolithic was more remote from ordinary experience than " Cellular," and yet it was held to be descriptive. 35 (See Lord Moncrieff's remarks, 13 R. 1.) [Lord KYLLACHY.-But apart from fraud altogether, you might have such a concourse of testimony from the trade as to show that a purely descriptive name had come somehow to have a technical or restricted meaning in the trade.] We do not think such a question could arise apart from fraud. The evidence to establish 40 fraud would exclude anything like innocent use. On the facts of the case here there was no difficulty whatever. "Cellular was in use before the Pursuers' firm came into existence. In that prior time it was used by the managing director of the Pursuers' firm, and therefore the Pursuers might, according to their argument, interdict the inventor of the name from using 45 it. It was not a fancy name. It was an apt, appropriate, and distinctive name according to the witnesses. The Pursuers' advertisements said that this cloth was cellular in structure so that they were precluded from now maintaining that it was not. The Pursuers had no doubt got undertakings from traders, but they really paid these traders after instituting actions against them. 50 [Lord KYLLACHY.-If your case is that they set up a secondary sense of the word by unfair means, that ought to have been put to the Pursuers. I have not heard anything of that.] No; we say they bought it. [Lord KYLLACHY.— Do you maintain that it would be a legitimate mode of capturing a nume in common use to threaten all persons using the name with proceedings.] We say 55 illegitimate. [Lord KYLLACHY.-I should rather have used the word lawful, |
