complaint of the waywardens, when they are seeking to recover by compulsory process the money the overseers are required to pay. That is the second objection. The third objection is, that this order is bad because it misdescribed one of the places, or part of one of the places, included in the general order. Now, the order itself purports to be made by the justices acting, or intending to act, under the 25 & 26 Vict. c. 61, and intituled "An Act for the better Management of Highways in England." And the whole purview of the order shows that it had the object and design to make provision for carrying into effect the enactments of that Act of Parliament. What it does is this: with reference to the particular district, the Tregony district, the several parishes, townships, tithings, hamlets, or places of Liskeard, among them "East Looe and West Looe, shall be united, and form and constitute the Liskeard district." By the Highway Act, the interpretation clause, the word "parish" is to include any place maintaining its own highways; and the expressions "highway district" and "highway board" have a common meaning. Now it is admitted that the borough of East Looe, which is not a municipal borough within the exception, is a borough maintaining its own poor and its own highways, and therefore is a parish within the definition of this 3rd section of the 25 & 26 Vict. Well then, if it is a parish, that is to say, a highway parish-because when considering all these details of the highway law, it would be unreasonable to entertain suggestions that go to show the possibility of there being some other place that may answer the description in an order of that sort, found in the case-we have before us, that the borough of East Looe is a place maintaining its own poor and its own highways, and we have the order desiring and intending to operate on the parish of East Looe, for the purpose of the Highway Act. I can see no difficulty whatever myself. It would be unreasonable to make objections for the purpose of making an order invalid, which do not appear to have any foundation in fact; and, therefore, reading this reasonably, with a desire to uphold the order, and give effect to what the justices have done, which it is our duty to do, unless we can see they have manifestly misconceived or gone beyond their authority, or have made a mistake in the mode of exercising it, I am far from saying that that vitiates the order in the description so given. That being the case, the fourth objection follows it, because Mr. Karslake does not deny that, if the order did not constitute East Looe part of the highway district, then the precept is informal. He says, that they endeavoured by the precept to cure what he calls a defect in the order, which he says it does not do. They have given a full description in the precept and in the order, and they really do mean the same thing. On these grounds, GILES v. GLUBB. GILES v. GLUBB. I am of opinion that the order is valid, and that the respondent is entitled to our judgment. LUSH, J.: I am of the same opinion, and I add nothing to the reasons given by my learned brother. Judgment for the respondent. CHANCERY. SEIXO v. PROVEZENDE (1). 1865. Nov. 10, 11, (12 Jurist, N. S. 215-218; S. C. L. R. 1 Ch. 192; 14 L. T. N. S. 314; 14 13, 14, 16, 17. W. R. 357.) 1866. Jan. 22. To entitle a trader to relief against the illegal use of his trade-mark. it is not necessary that the imitation thereof should be so close as to deceive persons seeing the two marks side by side; but the degree of resemblance must be such, that ordinary purchasers proceeding CRANWORTH, with ordinary caution are likely to be misled. The actual physical resemblance of the two marks is not the sole question for the Court, for if the plaintiff's goods have, from his trademark, become known in the market by a particular name, the adoption by the defendant of a mark or name which will cause his goods to bear the same name in the market, is as much a violation of the plaintiff's rights as the actual copy of his mark. Although the defendant may have some title to the use of a name or mark, he will not be justified in adopting it, if the probable effect of his so doing is to lead the public to suppose, that in purchasing his goods they are purchasing those of the plaintiff. THIS was an appeal from a decision of Vice-Chancellor Wood, in a suit instituted by the Baron do Seixo, a Portuguese nobleman, to restrain the use of a trade-mark. The facts of the case were as follows: The plaintiff was the proprietor of a quinta or estate on the south bank of the Douro, called the Quinta do Seixo, from which estate he derived his title. This quinta had long been celebrated for its growth of port wine, and the plaintiff had for many years consigned nearly the whole of this wine to Sadler, Harrison & Co., of London. Since 1848, if not from an earlier date, the plaintiff had been in the habit of branding the wine casks, containing the produce of his vineyard, with the figures of a crown and an eagle, and the letters B. S. (Barao or Baron do Seixo) on the head, and the figure of a crown and the word "Seixo," with the year of the vintage, on the bung. Hence, as the bill stated, the Baron's wine had acquired in the London market the name of the "Crown Seixo" wine, under which name it had attained considerable celebrity. The defendants the Baron de Provezende and Messrs. G. C. Sottomayor and F. Caldas were merchants trading in London as "Caldas Brothers; " and in the autumn of 1863 the plaintiff ascertained that they were offering for sale 100 pipes of port, which they had imported from Oporto, in casks branded on the head with the figure of a crown, the letters C. B., and the words "Seixo de Cima," with the year of the vintage; and at the bung with the figure of a V. (1) Applied, Wotherspoon Currie (1872) L. R. 5 H. L. 508, 521, 42 L. J. Ch. 130, 27 L. T. 393; Raggett v. Findlater (1873) L. R. 17 Eq. 29, 38, 43 L. J. Ch. 64, 29 L. T. 448. Considered, Montgomery R.R.-VOL. CXLIX. V. Thompson [1891] A. C. 217, 60 L. J. 34 Lord L.C. [215] SEIXO v. crown, the words "Seixo de Cima," and the year of the vintage. PROVEZENDE. The plaintiff also ascertained that the defendants intended to import more of this port wine, and considering that the brands adopted by them so closely resembled his own as to lead buyers to suppose that the wine offered by the defendants was his own growth, he filed his bill on the 12th September, 1863, praying for an injunction to restrain the defendants from affixing or applying to any casks of wine shipped to their order, or used by them, the mark of a crown, and the word "Seixo," or either of them, or any other mark or word so contrived as, by colourable imitation or otherwise, to represent the marks or brands used by the plaintiff; and also from employing any marks or brands containing the figure of a crown and the word "Seixo," or any mark similar to, or only colourably differing from, the marks or brands used by the plaintiff, or so contrived and prepared as to represent, or lead to the belief, that the wine offered for sale by the defendants was wine grown by the plaintiff, or the produce of the Quinta do Seixo. The defendants Messrs. Caldas Brothers, by their answer, stated that they were in partnership with the Portuguese grower of the wine in question; that the Baron de Provezende, being a grandee of Portugal, had a right to use the coronet with which, and not with a crown, their casks were marked; and that the letters C. B. were the true initials of Caldas Brothers. With regard to the words "Seixo de Cima," or "Upper Seixo," they alleged that they rented a quinta of that name close to the plaintiff's; that the word "Seixo" was a common word, to which the plaintiff could have no exclusive right, meaning a stony or rocky piece of ground, and was applied not only to the plaintiff's quinta, but to an entire district, including several vineyards besides those of the plaintiff's and defendants'. They further alleged, that their brands were not intended to imitate those of the plaintiff, for that the words "de Cima," and the letters C. B., were used to distinguish them therefrom; and they maintained that they were not, and could not be, mistaken the one for the other. A great mass of evidence was produced on either side. By the plaintiff, to show that the use of word "Seixo " by the defendants was not bona fide, inasmuch as the quinta for which they claimed the name by which they called their whole produce was one of their smallest vineyards; and that whereas the plaintiff's vineyard had been known as "do Seixo" since 1788, it appeared that the small vineyard of the defendants had been registered as the vineyard of the Rio Porto and de Ribiera; and there was great doubt whether it had ever been called Seixo at all. The defendants produced evidence to show that it was customary to blend the produce of various vineyards in one neighbourhood, and SEIXO v. give them the name of the most important, which need not necessarily be the largest in quantity; and that their vineyard was PROVEZENDE. situated in the "sitio," or district, "de Seixo." There was no evidence to show that the defendants ever offered their wine as "Crown Seixo," but it was proved that they had offered it as" Crown Seixo de Cima;" and Mr. Ruck, a wine broker of eminence, deposed that he believed it, when offered by that name, to be the plaintiff's wine. The evidence is further alluded to in his Lordship's judgment. The cause came on to be heard, upon motion for decree, before Vice-Chancellor Wood, and his Honour granted a perpetual injunction to restrain the defendants "from affixing, or causing to be affixed, to any casks of wine shipped to their, or any of their, order, or used by them, or any of them, the brand or mark of a crown, and the word 'Seixo,' or any other combination of marks or words so contrived as by *colourable imitation or otherwise to represent the marks or brands used by the plaintiff; and also from employing, or permitting to be employed, any marks or brands or other designation in respect of wines offered for sale by the defendants, or any of them, which should be so contrived as to represent or to induce a belief that such wines are Crown Seixo, or the produce of the Quinta do Seixo, in the plaintiff's bill mentioned; and also from describing or offering for sale their wines simply as Seixo wine, or otherwise using the word 'Seixo' in respect of such wines, without clearly distinguishing the same from wine produced on the plaintiff's said Quinta do Seixo." From this decision the defendants now appealed. Sir H. Cairns, Q.C., Amphlett, Q.C., and Macnaghten, for the [Apart from any question of trade-mark strictly so called, the plaintiff has a continuous and uninterrupted usage in the English market of the word "Seixo "combined with the crown, for thirteen or fourteen years, and his wine is well known as "Crown Seixo wine." No other person can pass off his goods by the same name. They cited Perry v. Truefitt (1), Croft v. Day (2), Edelsten v. Edelsten (3), M'Andrew v. Bassett (4), Cartier v. Carlile (5), Braham v. Bustard (6).] Rolt, Q.C., and Cracknall, for the defendants: The jurisdiction of the Court of Chancery in the matter of trademarks has been strained to its utmost limits, and never so far as in this case. The defendants have neither directly nor indirectly (1) 63 R. R. 11 (6 Beav. 66). (2) 64 R. R. 18 (7 Beav. 84). (3) 137 R. R. 202 (1 D. J. & S. 185). (4) 146 R. R. 356 (4 D. J. & S. (5) 135 R. R. 432 (31 Beav. 292). [ *216 ] |