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

and

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

sales. Here the names of the parties appear clearly, and the tins are not liable to be mistaken. They must establish that the use of the word would be calculated to deceive. In Huntley and Palmer v. The Reading Biscuit Co., 10 R.P.C. 277, it was thought that the use of the word "Meaby" would be sufficient to distinguish the goods of the Defendants in that action from Huntley and 5 Palmer's goods. Each case must be judged from its own facts. It is shown that "Triticine" has been used by us for many years. I submit there is no case made. [NORTH, J.-I shall not stop the case.] I shall show that we used the word "Triticine as far back as 1885. We were really the inventors of the word. Witnesses were then called on behalf of the Defendants.

Bousfield, Q.C., proposed to call rebutting evidence. The burden of proof as to the prior use of the word "Triticine was on the Defendants. NORTH, J., after some discussion, said he should allow the evidence to be given. The witnesses were then called.

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Sebastian for the Defendants.-There is no evidence of probability of decep- 15 tion. The words are not so similar that "Triticine" is an infringement of "Triticumina." This is substantially a case of alleged passing off. They have proved three things: (1) The registration of the mark; (2) the advertisement of October 1886, in which the name "Triticumina" appeared; (3) that "Triticumina was sold after 1891. There is no evidence of sale before 1891. 20 The Plaintiffs' evidence shows sales of "Triticine

going back to 1890. The Defendants' evidence shows that it was sold in 1885. The amount of the sales is immaterial, but we sold more extensively after 1890. The Plaintiffs' answers to interrogatories say that the patent processes referred to in the advertisements are those protected under the patent of 1886. If the article is not patented, they 25 are deceiving the public; Leather Cloth Co. v. American Leather Cloth Co., 4 De G. J. and S. 137. Then as to the Trade Mark, it is bad, first on the ground of being the name of a patented article; Magnolia Metal Company's Trade Marks, 14 R.P.C. 621, L.R. (1897), 2 Ch. 371. The fact that the patent is bad is immaterial. "Triticumina" was not applied to products in which the substance 30 made under the patent was not an ingredient. The fact that latterly a few biscuits have been so sold does not help them. That would be a fraud on the public. Also "Triticumina " is not a fancy word. The "Bovril" case shows that it is a question of fact whether the word is descriptive.

Bousfield, Q.C., in reply. The question is what the word meant at the date of 35 registration. The "Somatose" case is distinguished in the " Bovril" case. "Bovril" was the name of the article, but that is not what is meant by "descriptive." If an ordinary Englishman were asked what was meant by "Triticumina " at the date of registration, he would not have known. The root "trit" would rather convey rubbing than any connection with wheat. In regard to "Bovril," the word 40 "bovine was an ordinary English word. "Triticumina" would not carry anyone to any special product of wheat. One cannot go to advertisements issued afterwards; the registration was before the patent of 1886. The cases on "Electric Velveteen" and "Melrose" (Van Duzer's and Leaf's Trade Marks, 4 R.P.C.31) are modified by the "Bovril " case, and those words were English words 45 or names. There is no case where a word like this, coined from Latin, has been held bad. "Emollio" and "Sanitas" would be connected by the public with English words. There is no power to remove the mark if it were properly registered at the date of registration. In the Defence, they put their case on the 1885 patent. They now put it on the 1886 patent. The foundation of the cases on the point 50 as to the patent is that the word has become publici juris. “Triticumina" meal means meal produced by Meaby and Co. The actual processes have been varied from time to time. In the "Magnolia " and " Singer" cases, the word in question had a definite meaning; here it only means our goods. The statement

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

and

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

we make is, that in the manufacture of "Triticumina " there is employed a patent process. The statement is justified because the product could not be produced without the use of the process. The word "Triticumina" has no definite meaning except when coupled with one of the class which it is used to 5 describe. First, it essentially means a class of products emanating from Meaby and Co.; secondly, it does so apart from any changes of process of manufacture, of which the public has no information; thirdly, it describes no definite article at all, as, for instance, "Linoleum" did. The name of an article may be a good Trade Mark if it leads the public to the origin of the goods. The use of the word 10 patent" does not necessarily mean that it is the article that is patented; Cochrane v. McNish, 13 R.P.C. 100, L.R. (1896), A.C. 225.

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As to passing off, the sale of the business to the Company in 1891 was of a going concern; there has been a considerable business ever since, and the small trader will be protected equally with the large trader. I suggest that the 15 evidence as to use of "Triticine" was brought forward simply to ante-date the Trade Mark. It is the use of the name for the food which we complain of; this began in 1896. It has no special merits for infants ard invalids. The Defendants, the Goodalls, have not gone into the witness box. There is no evidence of any sale of "Triticine" outside Castleford. "Triticine " was pushed forward 20 in the middle of 1896. From 1892 to 1896 there was no trading in it in Castleford. There is evidence of confusion, because "Triticine" was ordered of us, and our agents were asked for it.

NORTH, J.-The burden of proof is upon the Plaintiffs in this case, and in my opinion they have failed. The case made against the Defendants shortly is 25 this, that the name " Triticumina," being the Plaintiffs' name, the Defendants have stolen it, or taken a colourable imitation of it for the purpose of passing off their goods as the Plaintiffs' goods. Now, it is clear that they have not done anything else with a view to passing off their goods as the goods of the Plaintiffs, and it is not, therefore, a case in which the use of the word "Triticine" was 30 merely one amongst several things that the Defendants had done, the others of which, or some of the others of which, I came to the conclusion were done with a view of trying to appropriate the Plaintiffs' name; but it is said that the word is taken from the Plaintiffs' name; and, by way of emphasising that, they ask me to restrain the Defendant Company from using the name Triticine Company 35 upon the ground that it is a colourable imitation of the Plaintiffs' name. I am not quoting the language of the pleadings, but that is the substance of it.

Now it is very important to see whether this name "Triticine " is derived from "Triticumina " or not. To my mind it is clearly shown that it is not. The name "Triticumina" was registered on the 26th of March 1886. It was registered 40 by Mr. Meaby, who was the predecessor in title of the Plaintiff Company, and who was, down to about eighteen months ago, one of the directors, as was also Mr. Farnworth, who carried on the business with him before. About eighteen months ago Mr. Farnworth retired from the directorship also. Mr. Meaby knows the whole history of the matter from the beginning. I have not seen him, nor 45 do I know anything whatever about the history of the word "Triticumina," where he got it from, and under what circumstance he invented it; and I know nothing about the word excepting that, as a matter of history, it goes back to the date at which it was registered. Now, the Defendants allege, and to my mind they have proved, that "Triticine " was a word used by Goodall before that time. 50 There has been a great dispute in regard to it, but there is evidence before me given by Mr. Faubert, with whose evidence I was absolutely and entirely satisfied, which does satisfy me that in 1885 labels were made by him for Goodall bearing the word "Triticine upon them. I have before me what is called his day-book; it was a rough book not made by a very skilful accountant,

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

and

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

but I find entered in that in 1885 this entry: "September 14th. Goodall, "500 Triticine labels, 8s. 6d." There is the very word, and they are supplied to Goodall at that time, and therefore, although I do not know what the contents of the labels are in other respects, yet that the word "Triticine" was a word then in existence and was upon the labels supplied by Mr. Faubert to Goodall, 5 I think is clear to demonstration. Certain labels have been produced, which it is suggested were some of those very labels. I do not think that is proved. They appear upon certain bottles, which it is proved by Mr. Simpson, the maker of those bottles, were bottles made for Goodall at that time, and I should have thought probably the labels were the labels used at the time. No 10 one speaks positively to that. Mr. Faubert swears positively that the labels were printed by him for Goodall, but he will not pledge himself to the labels on the bottles being the labels referred to in this entry which were supplied in 1885. He was an honest, genuine witness, in my opinion, and I have not the least doubt he endeavoured to tell the truth, and I think, as regards this, it is 15 proved to demonstration that some labels bearing that word were printed by him for Goodall in that year. It appeared that he had done certain other jobs for Goodall which were mentioned in the book, but none of them were referred to, with the exception of one about some match-boxes which appears in the year 1888. There is an entry there: "Goodall, 700 gross of labels, 55s." That 20 is under date of the 22nd of March 1888, but I am not satisfied that those had "Triticine" upon them; they may or may not have had, but it was not proved to my satisfaction that they had it. They were labels for match-boxes, and some labels for match-boxes that were used by Goodall I know, from the evidence of the witness, had not "Triticine" on; but I do not think this supply 25 of boxes in 1888 proves anything one way or the other. They may have had "Triticine" upon them, but it is not shown to my satisfaction that they had.

Then, on the 13th of October 1891, the Plaintiff Company registered its title of "Meaby's Triticumina Company," and bought Meaby's business; they paid 5500l., I think, for it in shares of the Company, and there was the assignment 30 before me showing that there was a business of that kind being carried on. The words used in the assignment itself, which I saw this morning, describe the business first in this way. Meaby's Triticumina Company, Ld., are the parties of the second part, that being the Company registered on that day. Then the recital is: "Whereas the vendors "-they were Meaby and Farnworth- 35 "for some time past carried on business at Queen's Road, Reading, aforesaid as "millers and manufacturers of the Triticumina ' Entire Wheat Meal flour upon "the premises being sold, and have determined to transfer the business to the "Company." Then what is agreed to be sold is, first, the freehold land referring to a map on the agreement, and including fixtures and the fixed 40 machinery; secondly, the goodwill of the said business, with the benefit of all contracts, engagements, rights, and privileges in relation thereto, and all patents, licences, and Trade Marks to which the vendors were entitled in connection therewith; and, thirdly, the movable plant, and so on. That is on the 13th of October 1891. Now, there is no evidence of any sort before me as to what 45 had been done as to the sale of "Triticumina " in the meantime. There are witnesses living who might have told me what was done; how it is the name was taken, giving me the history of the whole matter, and what business had been done under that name; but the evidence has been entirely silent on the point as to how much business Meaby's had done in this matter during that 50 time. That assignment I accept as showing what was assigned; but the details of it, and what part of it represented "Triticumina," I cannot tell. We have now got down to 1891. In the meantime, what had the Defendants, or rather Goodalls, the predecessors of the Defendant Company, been doing. We know, as

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

and

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

a matter of history, that they had got the name "Triticine " as an existing name in the year 1885. For some time I do not know what was being done in detail, but I will refer to such evidence as is about it presently; but I do know this, that the Plaintiff Company having been registered by that name on the 13th of 5 October 1891, before that time the predecessors of the Defendant Company had made a certain use of the word "Triticine." I will refer, first, to the evidence which is produced by existing instruments before referring to the evidence of the witnesses. I will take Mr. Shaw's evidence. Mr. Shaw is the book-keeper who produced certain books of the Defendants, and I have 10 the ledger which was prepared at some time in the first half of 1890, and which came into use as from the 1st of July in that year. On the right hand side on every printed page throughout that book there is introduced a list of various matters, which no doubt indicate things in which the owners of the book dealt. There is a long series of flours and meals and so on, Indian corn, maize, oatmeal, 15 wheat dust, and the last of those, probably the most recently introduced, is the word "Triticine" as one of the subjects of sale. No one suggests that that is not a book of that date, or that it has been tampered with in any way, and I have no doubt that it is a book containing that name as one of the articles intended to be sold. Then I have two other contemporaneous documents; the 20 first is an invoice book of Goodall's, which commences with the 14th of November and extends to the 29th of November. That covers a fortnight, and it contains 250 invoices, one half of which are filled and kept in the book, and the other half torn off and sent to the customer as the invoice. I find that in this, at the head of every page, is "Maker of the celebrated Triticine, used for every 25 cooking purpose; makes splendid puddings, porridge, &c." Then there is a reference to the Castleford Mills: "Goodall, Miller, Castleford," and then there is a description of the goods. In most of those, of course, "Triticine" would not appear. Whether it appears in any of those or not, I do not know. It is not material to have it there. The point is, that in this book and from this time 30 forward the invoices all contain printed at the head, "Maker of the celebrated "Triticine, used for every cooking purpose; makes splendid puddings, porridge, "&c." Then it appears that in earlier invoices of this kind the phrase used at the top had been," Maker of the celebrated Semolina, used for every cooking purpose; makes splendid puddings, porridge, &c." So that we have got the 35 exact date at which, in their invoices, they changed the title from "Semolina" to "Triticine," and from this time forward the word "Triticine" is used, where the word "Semolina" had been used before. Then there is another book produced. It was an invoice book of rather a different character; it is what they called a manifold invoice book, in which the entry is made on a page 40 of the book, and at the same time, by means of a black transferrer, a duplicate of it is made by the same operation of writing. Under the head of May 20th 1890 -that is six months before the invoice book I last referred to-I have this invoice: "Bought of Harry Goodall, one box of Triticine, 1s." Therefore, here is an instance of the sale of the "Triticine" described; it does not show 45 what the article is here, but this is one of the books in which the word at the top of the page is not "Triticine" but "Semolina." Afterwards, we know it is changed to " Triticine." I take it, the "box of Triticine " here refers to that article that was known as "Triticine," and afterwards was called "Triticine" in the invoices from November onwards. There are three instances, therefore, 50 here where, in 1890, the word "Triticine" is used as an article sold by the Defendants' predecessors. It is sometimes described as "Semolina" and sometimes as "Triticine," the words of description as to the purpose to which it could be applied being the same in both. Therefore, independently of the viva voce evidence, I have four instances as to which there can be no possible

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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.

doubt of the use of the word " "Triticine by the Defendants' predecessors, before the Plaintiff Company took over Meaby's business, and before I have any evidence before me of there having been actually any sale under the name of "Triticumina," of what is here sold as “ Triticine."

But it does not stop quite at the evidence I have referred to, because there is 5 certain verbal evidence about it, to which I propose to refer. There is the evidence of Broadbent, a clerk to the District Council. He says that he first heard of "Triticine" in 1885. He had two main events to fix that year. I do not forget what Mr. Bousfield said about the hesitation with which one must receive as proved a reference to dates in times gone by, where a man has 10 nothing but his recollection to go by; but if there is anything that assists him in fixing the date, it becomes very important. He says he first heard of it in 1885. Two events help to fix it in his mind. He recollected the swearing-in of some members of the District Council on the 16th of April, and then he said, "I had a baby girl then not thriving very well. Somebody said, 'Better try 15 "some of that new stuff Joshua Goodall is making.' I said, 'What is it?' He said, “Tri—Tri—' he stumbled, and I asked, 'Is it trichinosis?' and he said he did "not know. Some time after he gave me a small quantity of this something; I "took it home and handed it to my wife, and know no more about it." Then "Six or seven months afterwards Joshua Goodall asked me to go over their 20 "mill and see the alterations. As we were walking through he explained they "were going to put on the market a production of his own which he called "Triticine.' That was the first time I heard the word." Those are events in connection with it which might assist him to remember the date. But, then, there was this in addition. He added that the baby girl he referred to was then 25 two or three years old, and now she was fourteen or fifteen years old. That would carry it back to just the time at which he put it. Whether it was a year or two later would not really matter. It was long before 1892. Then Lee says, "In "1885 I first heard of Triticine.' Joshua Goodall gave me a sample; no name was then mentioned. About November of the same year I got a jar from 30 "Goodall. It is one of the jars I had 'Triticine' in. It had the label of 'Triticine' on it. It is like the label on H 2." Now, that is the label as to which there was a doubt as to whether it was one of those printed by Faubert in 1885 or not, and when the witness says it was like it, I did not understand him to assert positively that this was one of the labels, but that that label resembled the label 35 on H 2. Then he was asked if there was any doubt about it, and he said, "There is not, to my mind, any doubt it was delivered to me in 1885." Then, in cross-examination, he is asked why, and he gives a reason for it : In Sep"tember 1885, I took it home and showed it to my step-father at Welldale "Farm. They left there on the 9th of October 1885, and I had the sample in the 40 paper bag in September. It was my birthday." He remembered the day. Then he produced a bottle; he did not say it was the identical bottle, and it did not appear where that came from except that it came from his mother's, and he said the bottle was like that. He said, "That bottle had a label on it, "but I do not know what was on the label." Therefore we have got from him 45 the statement of this conversation in 1885, and the reason for fixing it is that he took it to his step-father at the farm which they left in October that year. Then there is Midgley, proprietor of the Ship Hotel at Castleford. He remembers the rebuilding of the old mill in 1884-5. "The first I heard of "Triticine' was in the autumn of 1885, when Goodall brought a sample for my 50 "wife to try. She tried it and liked it for puddings, and has used it ever "since. We have travellers' dinners five days a week, and that was so before "1885, and Triticine' was used for these dinners in 1885. My first purchase "was in a bottle something like these. I have known it as Triticine' only.

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