restrained by injunction from issuing notices warning the public against purchasing certain articles, on the ground that they are infringements of his patent, and threatening legal proceedings against those who purchase them, until it is proved that his statements are untrue; but as soon as that is proved he will be restrained, as any further issue of them cannot be bonâ fide.

Halsey v. Brotherhood, 19 Ch. D. 386; 51 L. J. Ch. 233; 30 W. R.

279; 45 L. T. 640; affirming the decision of Jessel, M.R., 15 Ch. D. 514; 49 L. J. Ch. 786; 29 W. R. 9; 43 L. T. 366.

The defendant company had issued circulars, declaring that the plaintiff was wrongfully using the defendants' labels upon his jars of extract of meat, and threatening the plaintiff's customers with legal proceedings for buying and reselling his jars bearing those labels; the plaintiff applied for an injunction to restrain the defendant from issuing such circulars; but the Court refused to grant it, because it was not satisfied that the statements complained of were untrue. (Chitty, J.)

Anderson v. Liebig's Extract of Meat Co., (1881) 45 L. T. 757. Subsequently Anderson issued new wrappers for his meat jars, with a photograph of Baron Liebig and the words, "This is the only Genuine Brand." The meat company, whose brand was at least as genuine as Anderson's, thereupon applied for and obtained an injunction restraining him from using such wrappers, although the company had themselves issued misleading advertisements. (Chitty, J.)

Liebig's Extract of Meat Co., Limited v. Anderson, (1886) 55 L. T. 206. The Court will not grant an injunction to restrain the bonâ fide issue of circulars, warning persons that if they buy of the plaintiff they will infringe the defendant's patent and be liable to proceedings, unless a very strong primâ facie case be made out, e.g., by showing that such publication is in violation of an express contract between the parties; however much the balance of convenience may be in favour of granting it.

Société Anonyme des Manufactures de Glaces v. Tilghman's Patent Sand Blast Co., (1883) 25 Ch. D. 1; 53 L. J. Ch. 1; 32 W. R. 71; 49 L. T. 451.

The plaintiffs were the makers of "Rainbow Water Raisers or Elevators," and they commenced an action for an injunction to restrain the defendants from issuing a circular cautioning the public against the use of such elevators as being direct infringements of certain patents of the defendants. The plaintiffs subsequently gave notice of a motion to restrain the issue of this circular until the trial of the action. The defendants then commenced a cross action, claiming an injunction to restrain the plaintiffs from infringing their patents. Held, by Kay, J., that as there was no evidence of mala fides on the part of the defendants, they ought not to be restrained from issuing the circular until their action had been disposed of, but that they must undertake to prosecute their action without delay.

Household and another v. Fairburn and another, (1884) 51 L. T. 498. This order was made by Kay, J., on May 8th, 1884. But in spite of this undertaking, the defendants did not proceed with their action with due diligence, and on April 30th, 1885, the plaintiffs renewed their motion, and obtained an injunction to restrain the defendants from issuing the circular complained of.

S. C., (1885) 2 Reports of Patent Cases, 140.

The defendant obtained, in 1879, a patent for folding window screens. In 1885 (after six years' undisturbed possession of this patent) he issued a circular calling attention to it, and threatening proceedings against all infringers. The plaintiff, who also made folding screens, commenced an action to restrain the issue of this circular to his customers and others. Then the defendant commenced an action against the plaintiff for infringement. In that action he failed. The plaintiff proved the defendant's patent invalid. Still Bacon, V.-C., held that the defendant was perfectly justified in issuing the circular at the time he did so; that there was no evidence of any malice; and he dismissed the action without costs.

Brauer v. Sharp, 3 Reports of Patent Cases, 193.

Sugg v. Bray, 2 R. P. C. 241; 54 L. J. Ch. 132.

The plaintiff appointed the defendants his sole agents for the sale of his mineral waters in Great Britain. The plaintiff subsequently terminated the defendants' agency. The defendants thereupon issued circulars and advertisements representing that they were the sole agents of the plaintiff, and threatening with legal proceedings any persons who should buy the plaintiff's mineral waters from or through any other persons than the defendants. The plaintiff applied for an interim injunction to restrain the issue of such circulars and advertisements. Held, that though the defendants had misconceived and misstated their legal rights under the circumstances, still there was no evidence that they knew this or were acting in bad faith. Injunction refused, but without prejudice to any fresh application in the event of any further advertisements being issued by the defendants.

Hirschler v. Hertz and Collingwood, (1895) 11 Times L. R. 466; 99
L. T. Journal, 213.

Threats by a Patentee.

In an action to restrain threats of legal proceedings under s. 32 of the Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. c. 57), no defence can be based upon the ground that what the defendant did was done bond fide, or that it was done on a privileged occasion. (Skinner & Co. v. Shew & Co., (1893) 1 Ch. 413; 62 L. J. Ch. 196; 41 W. R. 217; 67 L. T. 696.) Hence, in order to obtain an interim injunction, the plaintiff is under no obligation to prove malice in the defendant; but he must prove that the defendant's statements are false: he must establish at all events a prima facie case of non-infringement. It will then be open to the defendant to file affidavits showing that there has in fact been an infringement. If satisfactory affidavits to that effect be filed, the Court will not decide the question of infringement on that application; but will

refuse to grant any interim injunction, even though the defendant declines to take legal proceedings in respect of such alleged infringement. (Barney v. United Telephone Co., 28 Ch. D. 394; 33 W. R. 576; 52 L. T. 573.) If, however, after reading the affidavits on both sides, the plaintiff's case is still so far unimpaired that if the evidence remains. the same at the hearing, it is probable that he will obtain a decree, he will be entitled to an interim injunction. (Challender v. Royle, 36 Ch. D. 425; 56 L. J. Ch. 995.)

Where the plaintiff complains that the defendant is issuing notices to his customers threatening them with proceedings if they deal in plaintiff's goods, and the defendant thereupon carries out his threat, and sues the plaintiff or his customers for infringing the defendant's patent, this infringement action, if prosecuted with due diligence, is an answer to any proceeding under s. 32; for it takes the case altogether out of the section. It also probably affords a defence to any action on the case for damages, as it is strong proof of bona fides. But it does not follow that the plaintiff must submit to a continuance of these threatening notices till the trial of the action. If they are more than mere general warnings against infringement, if they contain assertions that the plaintiff has in fact infringed the defendant's patent, they may be restrained as a contempt of Court (see post, p. 502); for they tend to prejudice the fair trial of the infringement action. (Coats v. Chadwick, (1894) 1 Ch. 347; 63 L. J. Ch. 328; 42 W. R. 328; 70 L. T. 228; 8 R. 159; Goulard and another v. Lindsay, 56 L. T. 506; 4 R. P. C. 189; Fusee Vesta Co. v. Bryant and May, 56 L. T. 136; 4 R. P. C. 191; In re New Gold Coast Exploration Co., (1901) 1 Ch. 860; 70 L. J. Ch. 355; 8 Manson, 296.) And if such an injunction be granted, the applicant will not be required to give any undertaking as to damages. (Fenner v. Wilson, (1893) 2 Ch. 656; 62 L. J. Ch. 984; 42 W. R. 57; 68 L. T. 748; 3 R. 629.)

Illustrations.

A threat by a private letter is within the section; therefore, where a threat has been so made, but the defendants now admit that the plaintiffs have not infringed their patent, they will be perpetually restrained from making or continuing threats of legal proceedings.

Driffield and East Riding Cake Co. v. Waterloo, &c., Cake Co., Ch. D. 638; 55 L. J. Ch. 391; 34 W. R. 360; 54 L. T. 210. The defendant issued a circular stating that the plaintiff was infringing his trade-mark and his patent, and threatening proceedings against all persons who

retailed the goods alleged to be infringements. The plaintiff issued a writ under s. 32 of the 46 & 47 Vict. c. 57, and applied for an interim injunction. He satisfied the Court, on the balance of evidence, that he was not infringing the defendant's patent. The defendant had brought no action for infringement. Chitty, J., granted an injunction restraining the threats, so far as they related to the patent, till trial or further order. No order as to threats relating to the trade-mark.

Colley v. Hart, (1888) 6 Reports of Patent Cases, 17.

The defendant issued a notice to the public stating in general terms that it had come to his knowledge that certain of his patents were being infringed, and that his solicitor had instructions to take proceedings against all infringers. The plaintiff, who held a patent for goods similar to those in which the defendant dealt, then commenced an action for threats. The defendant, four days afterwards, but before the writ in this action was served on him, brought an action for infringement, not against the plaintiff, but against a Plumbing Company who retailed the plaintiff's goods. Held, that the defendant's action was an answer to an application for an interim injunction, and further that, if honestly prosecuted with reasonable diligence, it would take the case out of the section altogether.

Challender v. Royle, 36 Ch. D. 425; 56 L. J. Ch. 995; 36 W. R. 357; 57
L. T. 734; 4 R. P. C. 363.

And see ante, pp. 93-100.

Parliamentary Candidates.

By ss. 1 and 3 of the Corrupt and Illegal Practices Prevention Act, 1895 (58 & 59 Vict. c. 40), it is enacted that "any person, who, or the directors of any body or association corporate which, before or during any parliamentary election, shall for the purpose of affecting the return of any candidate at such election, make or publish any false statement of fact in relation to the personal character or conduct of such candidate " may be restrained by interim or perpetual injunction by the High Court of Justice from any repetition of such false statement or any false statement of a similar character in relation to such candidate; and, for the purpose of granting an interim injunction, primâ facie proof of the falsity of the statement shall be sufficient."

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Note that s. 2 of this Act, which excuses the defendant "if he can show that he had reasonable grounds for believing, and did believe, the statement made by him to be true," applies only to criminal or quasi-criminal proceedings for "such illegal practice;" it does not apply to an application for an injunction under section 3.

As to what is and what is not a "statement of fact within section 1, see the careful judgment of the late Baron Pollock in the case of the Borough of Sunderland Election Petition, (1896) 5 O'M. & H. pp. 62-64. He there lays down the rule “that a mere argumentative statement of the conduct of a public man, although it may be in respect of his private life, is not always, and in many cases certainly would not be, a false statement of fact." This passage was approved by Buckley, J., in Ellis v. National Union, dc., Associations and others, (1900) 109 L. T. Journal, 493, who added: "The Act was meant to deal with statements of fact as opposed to statements of opinion."

Illustrations.

A paragraph appeared in a local newspaper during an election to the effect that the Liberal candidate, who was a colliery proprietor, had locked his men out of their pits for six weeks till stocks were cleared out, and coal had reached a fabulous price. Then the late member for Chesterfield found his 'conscience' would not allow him to starve the 'poor miner' any longer." The defendants reprinted this paragraph in the form of a leaflet, and distributed it among the electors. The Court of Appeal held that this statement was derogatory to the plaintiff's personal character and therefore within the Act; that it was published for the purpose of injuring the plaintiff in the election; and, as no attempt was made to prove the charge true, an injunction was granted to restrain the further publication of the leaflet "until the trial of the action, or the election, whichever happened first."

Bayley v. Edmunds and others, (1895) 11 Times L. R. 537.

A Parliamentary candidate caused to be printed and circulated in the borough a leaflet headed "Election Facts and Fictions" in which he accused his opponent, who was an employer of labour, of paying his men "wretched wages," commented on "the remarkable differences between his practice in dealing with men in his own employ and his precepts when preaching to the employés of other people," and asserted that he "meanly took advantage of a slander against his opponent," ," "sheltered himself under a Radical shuffle," that such conduct was "hitting below the belt," &c. Pollock, B., held that these statements were not " statements of fact" in the sense in which those words were intended by the Act.

Borough of Sunderland Election Petition, (1896) 5 O'M. & H. 53. During the Parliamentary Election of 1900 a candidate published a poster in which he alleged falsely that his opponent was one of a band of Radical Traitors," "who are always found on the side of Britain's enemies," and who were during the summer of 1899 in correspondence with the Boers. Buckley, J., held that these were not statements of fact within the meaning of the Act.

·Ellis v. National Union, &c., Associations and others, (1900) 109 L. T. Journal, 493; Times, October 3rd, 1900.

As to injunctions to restrain the publication of words which are a contempt of Court, see post, Chapter XX., p. 499.