Edge and Sons, Ld. v. Gallon and Son.

Plaintiffs' witnesses, that the word "Dolly " had been adopted by the Plaintiffs from Ripley, and that the word "Dolly" was not adopted by the Plaintiffs until after Morris, who had been in Ripley's employ, had left Ripley and come into the employ of the Plaintiffs; but Morris was not called by the Defendants, and I am satisfied that there is no substance in the charge.

5

In this connection I ought to allude to a correspondence between Mr. Edge and Ripley in 1890. Mr. Edge had received a complaint from Mr. Ripley about the Plaintiffs' traveller. Mr. Ripley had complained to Mr. Edge that his traveller had been making invidious comparisons between Ripley's blue and the Plaintiffs' blue. Mr. Edge writes to Mr. Ripley to express his regret, and 10 says that he has warned his traveller not to repeat such conduct. Then he goes on to refer to some statement made by a Mr. Johnson to the effect that he had violated Mr. Ripley's Trade Mark. Mr. Ripley wrote in reply, "I am glad you "have taken the proper course with your traveller. You are quite at liberty to "enter any action against any blue manufacturers, but I should advise you to 15 "thoroughly go into the matter as to whether you are safe in using the word "Dolly' in connection with blue. I do not think you are, as you must know my Trade Mark, and you also know my 'Oval Blue' was asked for and sold as Dolly Blue' years before you made blue at all."

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That statement of Mr. Ripley is in itself of little importance unless supported 20 by evidence; but it is pressed against the Plaintiffs that no reply was sent to that letter. It seems to me that Mr. Edge did very well not to reply to it. It is quite clear that the object of his first letter was to keep, if possible, on good terms with Mr. Ripley; and if Mr. Ripley, in reply, made assertions which Mr. Edge believed to be altogether without foundation, it would not advance 25 his object to carry on an angry correspondence.

The Defendants' case seems to me really to rest upon the circumstance that Ripley had adopted, first in 1871 as a registered design, and afterwards in 1876 as a Trade Mark, a representation of a washing tub, with the top of a washing staff projecting out of the tub. This tub is called in Lancashire a dolly tub, 30 and the staff is called a dolly staff or dolly. In other parts of England the staff is called a peggy or a poss stick, and the tub a peggy tub or poss tub. The word "Dolly" formed no part of Ripley's Trade Mark, and it seems to me that the right to use this Trade Mark, which Ripley undoubtedly has, gives him no right to the word "Dolly." It is a mere coincidence that the representation of 35 the washing tub which forms Ripley's Trade Mark may in Lancashire be properly described as a dolly tub or a tub with a dolly in it. If the word "Dolly" had been used in connection with the Trade Mark, or if Ripley's blue had come to be known as "Dolly" blue before the phrase "Dolly Blue" had become the distinctive mark of the Plaintiffs' blue, different considerations 40 would have applied. But the right of Mr. Ripley to a registered device consisting of a representation of a thing which may be called a dolly tub, seems to me by itself not to affect the question at all. It does, however, serve to explain the statement of some of the witnesses, who appear to have confounded the Trade Mark with the word "Dolly," and to have assumed that any blue with 45 the Trade Mark upon it had acquired the name of "Dolly Blue." The Defendants' witnesses have altogether failed to satisfy me that "Dolly " was ever applied to laundry blue at all until Messrs. Edge applied it to their " Dolly "Blue,' or that "Dolly Blue" was ever used in the trade as describing Ripley's blue, or that it was, as some of the witnesses seem to have thought, 50 applied as a descriptive name to all bag blues. No doubt of late, owing to the extensive system of advertising carried on by Messrs. Edge, "Dolly Blue" has come to be a well known word. It is a word which has become a familiar word, and no doubt attempts have been made to capture the word, and that is the very thing that is complained of; and unless there is some evidence to 55 show that Messrs. Edge were aware of those attempts and did not interfere to stop them, they are not to suffer if, after they have established the word

5

10

Edge and Sons, Ld. v. Gallon and Son.

"Dolly" as the distinctive name of blue of their manufacture, other people endeavour to pass off other goods under the popular name. I think I may cite here the observations of Mr. Justice Kekewich, to which Mr. Cutler called my attention, in Ripley v. Bandey :-"I do not myself see how it is any 66 answer to a man who comes forward to establish such a common law Trade "Mark to say that, some time after your character was established and your 66 goods were known, and your money, time, and ingenuity had been expended, "perhaps in large advertisements, and otherwise, others began to use it, and so, "because they began to use it after your rights had been ascertained, it is in 66 common use. That seems to me to be an argument which contradicts itself "in the mere statement. When once appropriation has been made, common "use becomes impossible."

66

I do not know that it would be useful for me to attempt a review of the whole of the evidence adduced on behalf of the Defendants, and to point 15 out in detail the various reasons which lead me to distrust a great portion of it. A few observations I will make. Mr. Rigby, one of the first independent witnesses called by the Defendants, said in chief in effect, that "Dolly Blue" meant Ripley's blue. But although he was, as Mr. McCall said, a witness of unrivalled experience, in cross-examination he said he 20 dealt in Ripley's blue and did not deal in "Dolly Blue" at all. A similar observation may be made concerning Mr. Appleton's evidence. I do not think that the answers given in cross-examination by these witnesses were slips of the tongue. They had come, as witnesses often do, to support the Defendants' case, but it was just when off their guard that they fell and 25 into what was no doubt their usual habit of calling Ripley's blue “Oval

Edge's blue "Dolly." Mr. Kennedy's evidence when it was examined closely would be found to prove little more than that his customers when they wanted Ripley's blue asked for blue with the Trade Mark on it-the blue with the Dolly on. Then when I asked him, "When the customers ask for that, 30"what do you serve them with?" he said, "Ripley's 'Oval,'" showing that he knew Ripley's blue as "Oval Blue."

66

Mr. Carey's evidence I think leads in the same direction. It is quite true that in his examination in chief he says, "Until this case cropped up I never "heard tell of any other Dolly Blue' except Ripley's 'Dolly Blue'"; but 35 I think, with reference to his evidence and the evidence of a lot of other witnesses, you must look at it as a whole. He refers to the Trade Mark, and when asked, "If the customers ask simply for 'Dolly Blue,' how do you know " what they want?" his answer is that they are generally people that have had it before, and he understands that is what they mean.

40

Mr. Richard Dickson, in cross-examination, quite unconsciously uses the phrase "Dolly Blue" as synonymous with Edge's blue in opposition to Ripley's "Oval Blue."

Mr. Wheeldon, who is a traveller for Messrs. Ripley, says that he took orders for Ripley's blue as "Round Blue" and "Oval Blue." At the utmost his 45 evidence only comes to this: that he has been asked for "Dolly Blue," and he has supplied in answer to those orders" Round Blue" and "Oval Blue." It does not appear that he ever invoiced Ripley's blue as "Dolly Blue."

Mr. Thomas Wilde and Mr. Clement Jones both speak as to the customers asking for the blue with the Trade Mark, the "Dolly " Trade Mark on it. The 50 last witness said, "The shopkeepers when they want Ripley's blue generally ask for "Oval Blue "Mind you send that with the "Dolly" tub on it. It is true that when asked in cross-examination, "How is Edge's blue known? " he says it is known as "Dolly Blue," but that must be taken with his other

statements.

55 Mr. John William Atkinson says that his Ripley's blue generally ask for "Ŏval Blue." that until recent years Ripley's blue used to be

customers when they ask for In cross-examination he says "Oval Blue"; but known as

Edge and Sons, Ld. v. Gallon and Son.

during the last two or three years a demand has arisen for "Dolly Blue," and he can hardly say whether that is because Edge's blue has been so extensively advertised as "Dolly Blue."

Mr. John Wetherall thinks that "Dolly" has reference to the Trade Mark— "all the reference "—but he admits that Edge's blue is known as "Dolly Blue," 5 and the demand for "Dolly Blue" has grown in recent years; although at the end of his examination he states that "Dolly" has been applied to Ripley's blue for eleven years.

Mr. Samuel Stringer bases his evidence mainly on the Trade Mark.

Mr. Robert Wallis, who had been a general manager of one of the Defendants' 10 shops, gave evidence which is almost altogether in favour of the Plaintiffs. He was shopman with a Mr. Suggett from 1890 to 1896, and during that time he never heard of any blue being described as "Dolly Blue" except Edge's; he never heard of Ripley's blue being sold as "Dolly Blue." This witness had given a proof of his evidence to the Plaintiffs, but I do not know that that 15 circumstance discredits his evidence.

Mr. John Appleyard said "We have not another blue in the place besides "Edge's that is called Dolly." He adds that it is labelled "Dolly." He said further in cross-examination that he thought the use of the name Dolly had come from the advertisements up and down the walls, and in the papers 20 with Edge's name to them.

Mr. John Doherty when asked, "Have you ever heard that 'Dolly Blue' was "exclusively Edge's blue, or is it applied to both Ripley's and Edge's?" said, Edge's I should think, I understood Edge's to be 'Dolly Blue.'"

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Mr. William Brooks made a remarkable statement. He said that for fifteen 25 years his customers had asked for Ripley's blue as "Dolly Blue "; that the first time he heard the expression was on a Monday in July 1883, and he supplied Ripley's blue in paper with the Trade Mark on it. It is quite true that this statement of his is not contradicted, but it seems to me incredible that he should recollect such a circumstance occurring at so distant a period.

Mr. Haworth, who is a grocer at Accrington, said that if his customers ask for "Dolly Blue" he gives them any blue he has tied up in a bag, but he stated he was formerly at Rossendale, and when there he knew Edge's blue, and it was known there as "Dolly Blue."

30

Mr. Alfred Wells gave quite a new view of the meaning of "Dolly Blue." 35 He said that "Dolly Blue" meant either Ripley's or Edge's blue. To a question in examination in chief he said this, "Have you ever heard that "Dolly Blue' is exclusively Edge's blue, or that it is applied to both Ripley's "and Edge's?' he said, 'Edge's I should think. I understand Edge's to be "Dolly Blue.""

Mr. Samuel Shirley seemed to think that " Dolly Blue" meant bag blue, and he said he had sent orders to Ripley for Ripley's "Dolly Blue"; but in answer to the question, " By what name are Edge's goods known in the trade, he said, "Just Dolly Blue.'

40

Mr. Samuel Ward said that Ripley's blue began to be called "Dolly Blue" 45 when they began to put it in bags, which would be about 1892 or 1893. According to his view "Dolly Blue" does not mean the blue of any particular maker, but any blue in a bag.

Mr. Thomas Ellis, the next witness, said much the same thing; but in crossexamination he said if a customer put down a penny and asked for a "Dolly 50 "Blue," he would give him Edge's.

I have passed in very rapid review the independent evidence offered by the Defendants, and it seems to me wholly insufficient to displace or even seriously to controvert the very strong and consistent evidence on behalf of the Plaintiff. I have not overlooked the fact that many of those witnesses who have sold or 55 received orders for blue have expressed their opinion about_what_their customers want. No doubt in many cases the customers ask for "Dolly Blue"

Edge and Sons, Ld. v. Gallon and Son.

because they have seen "Dolly Blue" advertised, and the name has become familiar. The question remains, What do they want when they ask for "Dolly Blue?" If customers ask for an article under one name, and something is given to them which has been advertised under another name, the 5 question arises, Have they got what they wanted, or has something which they did not want been put off upon them by the dealer? If customers who wanted Ripley's blue were in the habit of asking for it as "Dolly Blue," or if customers who asked for "Dolly Blue wanted something else than Edge's blue, it would surely have been a very easy thing to have called the customers 10 to say what they wanted. There were three customers only called by the Defendants. The first was Mrs. Dawson. She says she knew Ripley's blue. "How do you ask for it when you buy it?"-(A.) Ripley's "Oval Dolly "Blue." (Q.) Have you always known it by that name ?-(A.) Yes. (Q.) Have you ever asked for "Dolly Blue "?—(A.) I never use any other 15 kind but Ripley's. Then I put to her, "The question is have you ever asked for Dolly Blue'"?—(4.) No, only Ripley's. (Q.) Have you never asked for "Dolly Blue "?-No. Then Mr. Maberly said, "Except in the way you spoke, "that is Ripley's Oval Dolly Blue'"?-(4.) Yes. (Q.) Is that the only "Dolly Blue" you know?-(A.) That is the only blue I use. It seems to me 20 that Mr. Maberly used his utmost art to coax her to say that she had asked for "Dolly Blue." She steadily refused to acknowledge "Dolly Blue" in any way, and she was a very steadfast upholder of Ripley's blue, and would not deign to acknowledge " Dolly Blue" in any form.

6

Then Mrs. Louisa Johnson was the second witness. She was steadfastly 25 attached to Ripley's blue; but that there might be no mistake, she said she always asked for it under the triple designation of Ripley's "Oval Dolly Blue." The evidence of this witness affords no assistance to answer the question what the customers want when they ask for "Dolly Blue."

The third customer called was Mr. Clowes, who was the watchman over a 30 reservoir. He said he always did the shopping for his wife. In his examination in chief he stated that he had known "Dolly Blue." A packet of Ripley's blue was handed to him, and he was asked whether that was the "Dolly Blue" he had known for so long a time, and he said "Yes." But although this answer was dexterously obtained by a leading question, it appeared, on cross35 examination, that he was unable to remember whether the blue he got fifteen years ago was in a bag or in paper, and he admits that he may have asked for "some blue" simply. Such evidence is really of no value.

I am far from being inclined to attach importance to the number of witnesses. I do not think that the weight of evidence depends upon the number of 40 witnesses called; but I cannot help regarding it as most significant that no single customer whose evidence can be regarded as of value has been called to declare that he asked for "Dolly Blue" when he wanted Ripley's, or asked for "Dolly Blue" when he wanted any other blue than Edge's blue. Considering that there are tens or hundreds of thousands of persons who, if the Defendants' 45 case be true, must have been in the habit of asking for Ripley's blue under the name of “Dolly Blue," I cannot help regarding the absence of such evidence as a most striking feature in the case. It affects the whole of the Defendants' case, because although the Defendants' witnesses who supplied Ripley's blue to customers who asked for "Dolly Blue" may think that they gave the customers 50 what they wanted and what they asked for, yet the customers themselves are the only persons who can say whether they did get what they wanted and what they asked for.

There is another matter I must just mention. One fact in the case is the absence or the extreme scarcity of documents produced by the Defendants 55 containing any description of Ripley's blue or "Oval Blue " or " Round Blue" as "Dolly Blue." A bundle of orders has been produced by the Defendants, which they say show that orders have been sent to Ripley for "Dolly Blue."

Edge and Sons, Ld. v. Gallon and Son.

The dates of those documents are of importance. It was in 1887 that the word "Dolly" was adopted by Edge. The earliest document produced by the Defendants in which Ripley is asked to supply "Dolly Blue" is in 1892, at a time when Edge had for some years been advertising his blue as "Dolly." But there are only one or two of those documents produced bearing date 1892, 5 and one of the documents was really in the form of a letter of inquiry. It was a letter from a Mr. Walter Law, dated apparently in the month of February 1892: "You can send me 7 gross of penny blue and 3 gross of penny blacklead "if you can put this small order in at the ordinary price." Then he says there is a good deal of competition and the sale is very slow. "The blue-I want 10 "them in rag like the sample you left, but I want the quality the same. I have "been asked a lot of times for Dolly Blue' wrapped in rag, so I shall be able "to supply them with same. The sale might increase in that line; if so, I shall "be able to order the usual quantity after." In 1893 there are three or four orders sent to Ripley for " Dolly Blue"; but in one of those cases, the case of 15 Ratcliffe, the blue is invoiced by Ripley as "Round Blue," and not as "Dolly "Blue." In 1894 there are five or six orders; but here again, in the case of one of those orders, that of Kirk, of the 17th of January 1894, the goods were invoiced as "Round Blue"; indeed, I do not know a single instance in which the Defendants have produced an invoice in which Ripley has invoiced blue 20 as other than "Oval or "Round Blue." Following the five or six orders in 1894 we find more in 1895, but most of the orders are in 1896-97. This is just what one would expect if it be true that the demand for "Dolly Blue" was occasioned by the success of Edge's blue, and that the Defendants were endeavouring to appropriate to themselves the name which had become 25 identified with the Plaintiffs' blue; but even those orders so late as 1898 show that the customers were not always satisfied to be supplied with Ripley's blue when they ordered "Dolly." There is a letter from Mr. Charles Eltham, of the 13th of April 1898: "I am in receipt of your letter and invoice. My "order was for Dolly Blue,' not 'Oval Blue' in calico. I only stock 'Oval 30 "Blue' in paper. Can you inform me the name of the makers of ' Dolly Blue' "and their address." I do not intend to go through all these orders. There are some other documents among these orders which seem to show that the customers speaking of "Dolly Blue" are really making inquiries where they can get "Dolly Blue," and are sending orders for "Dolly Blue" because the 35 "Dolly Blue" has become in demand.

Although I am afraid I have not touched upon the whole of the points in the evidence, yet I think I have substantially dealt with the main matters upon which the evidence has been given; and I have, after a careful consideration of the whole case, come to the conclusion that "Dolly Blue" as applied to 40 laundry blue does mean the laundry blue made by the Plaintiffs as distinguished from laundry blue made by other makers, therefore I ought to give effect to the claim of the Plaintiffs in this case.

The learned Judge granted an injunction to restrain the Defendants, their servants and agents, from selling or offering for sale, and from passing off 45 or attempting to pass off, any laundry blue not being of the Plaintiff Company's manufacture as or for the goods of the Plaintiff Company by the use of the word "Dolly," and ordered an inquiry as to damages. He gave the Plaintiffs the costs up to and including judgment, and reserved the costs of the inquiry.