V.-C.B.

Hirst v. Denham.

1872

after defendant Dearnley entered his service, having been previously employed in the plaintiff's, and having become acquainted with the particulars of the plaintiff's manufacture. The plaintiff has, moreover, stated explicitly that he never heard or knew of the adoption by any person of the names he claims until shortly before the commencement of the present suit, and that as soon as he did know of it he took steps to prevent it; and no attempt has been made to dispute his statement in this respect; and however this may have been, none of the witnesses say that the commodities nade by them were distinguished by tickets, or in any other manner, so that by any possibility the goods made by them could be mistaken for those in which the plaintiff was known to deal. But it is not by the names alone that the identity of the plaintiff's goods is preserved. For the purpose of preserving that identity he employs a ticket which is proved to be of an original design, in which is written by the plaintiff the name of the commodity, which is affixed to the goods themselves, and which is used as and meant to be the mark by which in his trade he announces the name and color and quality of his goods, and becomes responsible, as between himself and the persons with whom he deals, for the particulars inscribed on the ticket. The defendants use for the like purposes a ticket very closely resembling that of the plaintiff. The defendants say this ticket was selected by the defendant [552 Dearnley from the stock of a stationer at Huddersfield, who says that he made the ticket for an Irsh firm, which he does not name. The former employment of the defendant Dearnley in the plaintiff's manufactory suggests to the plaintiff and some of his witnesses that this selection could not be accidental. The defendant Dearnley says the nature of his employment by the plaintiff did not make him acquainted with the tickets then used, his department being the manufacture in a mill distant from the warehouse, and the tickets being affixed to the bales when finished, and in the latter place; and, not admitting that he had ever seen the plaintiff's tickets, he says that if he had ever done so he had wholly forgotten it at the time when he bought the tickets he uses. I do not lay any stress upon such contradiction as is given by the plaintiff's witnesses to this part of Mr. Dearnley's statement; but, taking it to be as he says, I cannot admit it as an excuse for the adoption by the defendants of a ticket so closely resembling that of the plaintiff which is used by them as well as by the plaintiffs as a trade-mark, and as the only trademark used by either of them.

The observations of the Lord Chancellor in Wotherspoon v. Currie (1) seem to have a very direct application to this part of (1) Law Rep., 5 H. L., 508.

3 ENG. REP.]

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Hirst v. Denham.

V.-C.B.

the case. His Lordship, speaking of the similarity of the packets of starch made and sold by the defendant to those in use by the plaintiff, says (2):

66

When there is so much general similarity, it does become the more necessary to take care that the mark which is to distinguish the article shall be really distinguishing, and that when you have got all the other combinations, so that persons do not look at the shape of the packet, or at any other indicia of the packet than the particular distinguishing mark (in this case the name of the man or the fancy name of the article), those things should, by people who wish to deal honestly by each other, be kept very distinct."

The particular facts in the starch case, Wotherspoon v. Currie and in the present, are different, but the principle of the decision is the same, and must be applied to this case if the result leads to the conclusion which was drawn in that case, "that the public might be led to believe while they buy the defendant's goods, that they are buying an article manufactured by plaintiff 553] in consequence of a name (Glenfield) being used, the celebrity of which was first acquired by its being applied to plaintiff's mauufacture, which of course they think it continues to be."

The plaintiff in that case had manufactured and sold starch There was nothing in the nature of the manufacture which coula give the plaintiff any exclusive right to such manufacture, but he had bestowed upon it a name by which he sought to distinguish the starch made by him from the starch made by other manufacturers, and by that name his commodity was sold and known. The defendant had adopted the same name, and had sold his starch made up in packets the external appearance of which resembled those used by the plaintiff'; and although this fact is mentioned in the judgment, and observed upon as casting some doubt upon the good faith of the defendant, the principal ground of the decision I take to be that the use of the name "Glenfield" was the wrongful act from the continuance and repetition of which the defendant was restrained. And that this was so appears from the observations made by Lord Westbury on the same occasion, who said (2): I take it to be clear, from the evidence, that, long antecedently to the operations of the defendants the word Glenfield' had acquired a secondary signification or meaning in connection with a particular manu factor in short it has become the trade denomination of the starch made by the plaintiff. It was wholly taken out of its ordinary meaning and in connection with starch had acquired that peculiar secondary meaning to which I have referred. The (1) Law Rep., 5 H. L., 514. (2) Page, 521.

V.-C.B.

Hirst v. Denham.

1872

word "Glenfield,' therefore, as a denomination of starch, had become the property of the plaintiff. It was his right and title in connection with starch.” Then, is the use made by the defendants of the names of the plaintiff's cloths, and the form and manner in which the defendant's cloths are sold, likely to deceive purchasers, and to lead them in buying the defendant's cloths to suppose that they are buying those of the plaintiff? I have referred to the evidence on this point, but even without that evidence I think it is apparent that such must be the result. It is not possible that the merchants who deal wholesale with the defendants can be misled. They purchase directly from the defendants, and know what they are doing But the tailor or other retail dealer *who, having become acquainted with [554 the name and quality of the plaintiff's cloths, and desiring further supplies of the same and no other- if he goes to the merchant and asks for what he wants by the only name he knows of, and sees lying before him two bales of cloth, similar in all external appearance, with tickets attached to them (if the merchant had suffered such tickets to remain attached, which seems not always to be the case) so nearly alike that the difference could only be perceived upon a very minute examination, and not possessing such skill and experience as would enable him to detect any difference in the quality of the goods by merely looking at them, would unquestionably be liable to be disappointed and deceived. The temptation of the lower price would not unnaturally induce him to select the defendants' cloths, which are, I think, upon the evidence as it now stands, shown to be of quality inferior to the plaintiff's and thus the re tail dealer would find himself possessed of cloth in the manufacture of which Mungo had been used, while he thought he was acquiring the cloth of the plaintiff, which is composed of wool only. The wear of the article might ultimately convince him of the mistake he had made; but in the meantime the plaintiff's reputation and his trade would be damaged.

I am, therefore, of opinion, that the plaintiff has established such a right to the exclusive use of the names by which, and the tickets with which, he has for years past sold his goods; that the defendants cannot be permitted further to use those names or tickets so closely resembling those of the plaintiff. It has been said on the part of defendants, that it would not be right to grant an interlocutory injunction, because the consequence of that would be to stop, or at any rate to interfere prejudicially with, their trade. If the injunction is the right of the plaintiff, I do not think it ought to be withheld from him upon any such consideration. But I am far from thinking that it would necessarily have any such effect as the defendants suggest. Their

1

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Hirst v. Denham.

V.-C.B

trade need not be in any degree intercepted, although they are debarred from using the name and tickets in question, while, on the other hand, the prejudice to plaintiff might be very great if the defendants are permitted to sell at lower prices goods of inferior quality, but of the same name and externally resembling 555] those of the plaintiff, by which he has established an extensive trade and reputation. I think, therefore, that the injunction as prayed for must issue.

Solicitors: Messrs. Learoyd & Learoyd; Messrs Van Saudau & Cumming; Messrs. Edwards, Layton, & Jacques.

INDEX.