SEIXO v. PROVEZENDE. 1866. Jan. 22. imitated the plaintiff's trade-mark. The defendants' mark is not the word "crown," but the emblem of a Viscount's coronet, which they have a right to use; and if they use one species of a thing, known by a genuine name, they ought not to be stopped because another person had adopted another species, and the two things are called in conversation by the same generic name. The word "Seixo" is a word common to many vineyards, and one which the defendants have as much right to use as the plaintiff. An injunction will not be granted against the use of so common a word: M'Andrew v. Bassett (1). If we establish one title to the word "Seixo," and we do not imitate the trade-mark, the plaintiff's case is gone. His whole equity is founded on Ruck's affidavit. We have never sold our wine as the plaintiff's, and not even in conversation, if the wines are correctly named, could there be a mistake, for the one would be called "Crown Eagle Seixo," the other "Crown Seixo de Cima." No one has been nor could be deceived, and if there is nothing which can deceive, there is no jurisdiction. If a trader is so careless of his own interests as to neglect sufficiently to identify his manufacture, the Court cannot interfere to protect him. There may be remedies at law for slander or misrepresentations resulting in loss, but for the foundation of any equitable jurisdiction, there must be imitation of some other person's mark. (They cited Leather Cloth Company v. American Leather Cloth Company (2); Harrison v. Taylor (3); and distinguished the authorities mentioned [cited for the plaintiff].) Sir H. Cairns, Q.C., in reply: The jurisdiction of the Court of Chancery as to trade-marks is one of the most wholesome branches of the Court; it has enforced fair and honourable dealing amongst traders, and ought to be maintained. The defendants [have] assumed a name to which they were not bona fide entitled, in order under the guise thereof to pass off their wine as that of the plaintiff's. (He referred to Hogg v. Kirby (4), Motley v. Downman (5), Franks v. Weaver (6), Glenny v. Smith (7), and Byron v. Johnston (8). LORD CRANWORTH, L.C.: Cur. adv. vult. This is a bill to restrain the use of a trade-mark. The plaintiff is a Portuguese nobleman, the owner of a vineyard on the south bank of the Douro, called the Quinta do Seixo. The word "Seixo " means stony or pebbly. Portuguese noblemen usually mark the (1) 146 R. R. 356 (4 D. J. & S. 380). (2) 145 R. R. 287 (11 II. L. C. 523). (3) 147 R. R. 811 (11 Jur. N. S. 408). (4) 7 R. R. 30 (8 Ves. 215). (5) 45 R. R. 195 (3 My. & Cr. 1). (6) 76 R. R. 132 (10 Beav. 297). (7) 143 R. R. 242 (2 Dr. & Sm. 476). (8) 16 R. R. 135 (2 Mer. 29). casks which contain the produce of their vineyards with a crown or crowns. The plaintiff has, since 1818, stamped the top of his casks with his coronet, the letters "B. S.," and the date of the year; and the side of the casks, at or near the bung, with his coronet, the word "Seixo," and the date of the year. Hence the plaintiff's wine has obtained celebrity in the London market, and has acquired the name of "Crown Seixo wine." The defendants have since 1854 been proprietors or farmers of a vineyard adjoining that of the plaintiff, and of some other small vineyards near it, but on the opposite bank of the Douro. Until about the beginning of 1861, they sold their wine to other growers or merchants, but at that time they established their present firm in London, Caldas Brothers, to which their produce is consigned for sale. They have adopted as their trade-mark a brand on the top of the cask of a coronet, the letters "C. B.," the words "Seixo de Cima," and the date of the year, and they put the same brand or stamp at or near the bung. The present bill was filed to restrain the defendants from using this mark The defendants put in an answer, and a great mass of evidence was produced on each side. His Honour, Vice-Chancellor WoOD, has made a decree in favour of the plaintiff, and from that decree the defendants appeal, on the ground that there is no infringement, and no similarity. If the question turns on the inquiry, whether a person, *having a cask of the plaintiff's and a cask of the defendants placed before his eyes, could mistake the one for the other, there can be no doubt as to the result. The marks on the one and on the other are altogether different. But that is not the question, or not the sole question, to be considered. The principle on which relief is given in these cases is, that one man cannot offer his goods for sale, representing them to be the manufacture of a rival trader. Supposing the rival to have obtained celebrity in his manufacture, he is entitled to all the advantages of that celebrity, whether resulting from the greater demand for his goods, or from the higher price which the public are willing to give for them, rather than for the goods of other manufacturers whose reputation is not so high. Where, therefore, a manufacturer has been in the habit of stamping the goods which he has manufactured with a particular mark or brand, so that thereby persons purchasing goods of that description know them to be of his manufacture, no other manufacturer has a right to adopt the same stamp. By doing so, he would be substantially representing the goods to be of the manufacture of the manufacturer who had previously adopted the stamp or mark in question, and so would or might be depriving him of the profit he might have made SEIXO ፖ. PROVEZENDE. by the sale of the goods which, ex hypothesi, the purchaser intended to buy. The law considers this to be a wrong towards the person whose mark is thus assumed, for which wrong he has a right of action; or, which is the more effectual remedy, a right to restrain by injunction the wrongful use of the mark thus pirated. It is obvious that in these cases questions of considerable nicety may arise as to whether the mark adopted by one trader is or is not the same as that previously used by another trader complaining of its illegal use; and it is hardly necessary to say, that in order to entitle a party to relief, it is by no means necessary that there should be absolute identity. What degree of resemblance is necessary, from the nature of things is a matter incapable of definition à priori. All that courts of justice can do is to say, that no tradesman can adopt a trade-mark so resembling that of a rival, that ordinary purchasers purchasing with ordinary caution are likely to be misled. It would be a mistake, however, to suppose that the resemblance must be such as would deceive persons who should see the two marks placed side by side. The rule so restricted would be of no practical use. If a purchaser, looking at the article offered to him, would naturally be led, from the mark impressed on it, to suppose it to be the production of the rival manufacturer, and would purchase it in that belief, the Court considers the use of such a mark to be fraudulent. But I go further. I do not consider the actual physical resemblance of the two marks to be the sole question for consideration. If the goods of a manufacturer have, from the mark or device he has used, become known in the market by a particular name, I think that the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market, may be as much a violation of the rights of that rival as the actual copy of his device. It is mainly on this ground that I have come to the conclusion, that the decision of the VICE-CHANCELLOR in the present case was correct. Ever since the year 1848 the plaintiff, Baron Seixo, had caused his casks to be stamped with his coronet, on the top, and with his coronet and the word "Seixo" at the bung; and the evidence shows that his wines had thus acquired in the market the name of "Crown Seixo wine." When, therefore, the defendants, in the year 1862, adopted as their device a coronet with the words "Seixo de Cima," meaning Upper Seixo, below it, the consequence was almost inevitable, that persons with only the ordinary knowledge of the usages of the wine trade from Oporto would suppose, that in purchasing a cask of wine so marked, they were purchasing what was generally known in the market as "Crown Seixo" wine. The present case is thus brought distinctly within the principle on which all these cases rest. The plaintiff had adopted a device or trade-mark which had caused his wines to obtain celebrity under a name descriptive of that trade-mark. The defendants have adopted a trade-mark which could not fail to lead purchasers to attribute to the wines so marked the same name as that under which the plaintiff's wines were known, and so to believe that in purchasing them they would be purchasing the wines of the plaintiff. Against the use of such a trade-mark the plaintiff has, I think, a right to have the injunction of this Court. A long and elaborate attempt was made to show that the defendants had a right to the use of the trade-mark which they have adopted. They have, either as owners or lessees, a vineyard adjoining that of the plaintiff, and several small vineyards on the opposite side of the river. Seixo, it was said, means stony or pebbly. "Vino do Seixo," therefore, is only the same thing as "Vin de Grave" in French, or "Steinwein" in Germany. The defendants' vineyards, it was said, were, or some of them were, if not forming part of the plaintiff's Quinta do Seixo, at all events situate on what is called the Sitio do Seixo, or the district of Seixo. The evidence as to the precise nature of the defendants' title to their different vineyards, and of the names by which they are known, is by no means clear; but I think it immaterial to pursue any inquiries on this subject. For even assuming the truth of what is contended for by the defendants, i.e. that parts of their vineyards are known by the name of Seixo, that does not justify them in adopting a device or brand, the probable effect of which is, to lead the public, then purchasing their wine, to suppose that they are purchasing wine produced from the vineyards, not of the defendants, but of the plaintiff. Cases may be imagined, though very unlikely to arise, in which a person bringing into the market for the first time the produce of a newly-established manufacture, to come into competition with one already established, may really be embarrassed as to the mode in which he should describe it, so as not to interfere with the description adopted by a manufacturer who has been before him. If such a case should arise, it must be dealt with on its own merits. But here I feel it impossible to doubt that the defendants, in adopting the trade-mark, which they, in fact, adopted, must have known that they would be thereby likely to gain for their wines some of the celebrity which had attached to those of the plaintiff; at all events, whether this was or was not present to the minds of the defendants, this was the inevitable consequence of the course they took. The defendants rested their argument in part on the case of SEIXO v. PROVEZENDE. SEIXO v. PROVEZENDE. [ *218 ] 1865. Dec. 15. 1866. Jan. 12, 13. KINDERSLEY, [ 326 ] Leather Cloth Company v. American Leather Cloth Company (1), decided last session in the House of Lords. But the facts of that case bear no resemblance to the present. There, both parties, plaintiffs and defendants, were manufacturing and dealing in the same article, known in the market as American leather cloth. Neither party had an exclusive right to that name, and the plaintiffs had not acquired any particular name for their American cloth, unless, indeed, the name of *Crockett & Co., connected with it, and from whom they had purchased their business, could be so considered. But no one, looking at the defendant's trade-mark, could be led to suppose he was purchasing goods from what was originally Crockett's manufactory. Unless a purchaser could be deceived by the similarity of the trade-mark, he could not be deceived at all, and the House of Lords thought that the two trade-marks were so different that no one could suppose them the same. This case, therefore, affords no support to the defendants. In order to assimilate that case to the present, we must suppose that the plaintiffs there had so marked their goods with the name of" Crockett" as to have obtained for it in the market the name of "Crockett's American leather cloth," and then that the defendants had adopted a device which would have led purchasers to suppose that their cloth was not merely American leather cloth, which it was, but Crockett's American leather cloth, which it was not. The two cases are entirely different, and the present appeal must be dismissed, and, of course, with costs. EDMUNDS v. WAUGH (2). (12 Jurist, N. S. 326-328; S. C. L. R. 1 Eq. 418; 35 L. J. Ch. 234; 13 L. T. N. S. 739; 14 W. R. 257.) The Statute of Limitations does not apply to any case in which there is not strictly a suit or action for the recovery of interest." Therefore where, under a power of sale in a mortgage deed, the property mortgaged was sold, and the proceeds paid into Court to the general credit of an account in an administration suit of the estate of the mortgagee, upon a petition by trustees of the parties beneficially entitled to the fund in Court: Held, that they were entitled to the full arrears of interest on the mortgage, the fund after sale having been in their possession, and no recovery by distress, suit, or action being requisite. PETITION. This was a petition in a suit for the administration of the estate of Mr. Waugh, the main question on which was, whether the petitioners, the plaintiffs in the suit, were entitled to more than six years' arrears of interest on a certain mortgage which formed part of the estate under administration. (1) 145 R. R. 287 (11 H. L. C. 523). (2) Expl. In re Stead's Mortgaged Estates (1876) 2 Ch. D. 713, 45 L. J. Ch. 34. Approved, In re Marshfield (1887) 34 Ch. D. 721, 56 L. J. Ch. 599. Followed, Dingle v. Coppen [1899] 1 Ch. 726, 68 L. J. Ch. 337 |