then the trade mark would not be rendered void by the addition of the word patent. 4. That generally, any trade-mark adopted with a false representation of its foundation, is not such as will be protected. 5. That the name of a substance generally known, will not constitute, per se, a trade mark. CHAPTER III. OF INFRINGEMENT OF TRADE MARKS. Ir is not very easy to define generally and exactly, what amounts to infringement of trade-marks; and an approximation to such a definition can only be attained by analysis of the leading and most important authorities bearing on the question. It is of course infringement where similarity is obvious, and the defendant is aware of the plaintiff's trade mark, and yet imitates it. But where there is considerable dissimilarity, though some similarity, between the plaintiff's trade mark and the defendant's; the Court will not interfere. Thus in Raggett v. Findlater (a), the plaintiff was a manufacturer of stout. Before the year 1860, the stout manufactured by him had acquired considerable celebrity; it was known to the public by the name of "Nourishing Stout." In the year 1860, the plaintiff registered a trade label, under which he sold his stout; the label described the stout as "Nourishing London Stout," the words being placed round the circumference of the label; and in the centre, were the words "Raggett late Blockey" "analysed and reported on by Dr. Hassall." The defendants, also brewers, sold their beer with labels having the words "Nourishing Stout, bottled by Findlater, Mackie & Co., 16 Prince Albert Street, Brighton," printed in letters similar to those in the plaintiff's trade mark. The application of the plaintiffs to the Court of Chancery, was for an injunction to restrain the defendants from using such labels as above described, or (a) L. R. 17 Eq. 29. similar to the plaintiff's, or any labels with the words nourishing stout thereon. The V.C., Sir R. Malins, referring to several authorities, said, that in the cases cited in support of the plaintiff, and in other cases that had been before the Court, there had been some studious imitation, or something shewing the defendant's object to be to mislead the public, and to induce them to believe they were buying the plaintiff's goods, when they were, in fact, buying those of the defendant's (b), and his Lordship continued: "If I take the plaintiff's trade mark, as that round label, this of the defendant is so dissimilar, that one cannot be mistaken for the other: and the bill was dismissed. In Croft v. Day (c), the plaintiffs were the executors of Day, the surviving partner of the firm of "Day & Martin," the celebrated blacking manufacturers (known from the year 1801). Their blacking was known to the public by the name of " Day & Martin's" printed on labels on the bottles of their blacking. Their business was carried on at "No 97 High Holborn." On the death of Day, his executors carried on the same business at the same place, in the name of "Day & Martin," which they had authority to do, under transactions between Day and his original partners. The defendant was the nephew of the original Day, and set up and carried on business as a blacking manufacturer, close to the premises of the original firm, viz., at 90 "Holborn Hill;" and he sold his blacking under the title of "Day & Martin ;" and he used wrappers, similar to those used by the original "Day & Martin" on their labels, with this exception that the defendants put the "Royal Arms" in the centre of their labels, instead of a picture of the factory at 97 High Holborn used by the original "Day & Martin." The defendant's evidence shewed, that he had applied (b) See p. 34 of the Report. (c) 7 Beav. 84. to an acquaintance named "Martin" for liberty to use his name, and obtained such liberty; and that a treaty for partnership was pending between him "Day," and his friend "Martin.' Lord Langdale, M.R., granted an injunction against the defendant, on the ground that the course pursued by him was in the nature of a fraud, tending to mislead the public; admitting that the defendant had a right to carry on the trade of a blacking maker in his own name "Day," but, holding, that he had no right to carry it on in such a way as to deceive and defraud the public (d). In the case of Edelsten v. Edelsten (e), the plaintiff' was a wire manufacturer, and had formerly carried on the business in partnership with Price, under the firm of "Edelsten & Price." After the death of his partner Price, the plaintiff continued to carry on the business under the same title, "Edelsten & Price." Up to the month of September, 1852, the plaintiff had used no trade mark, but, in September, 1852, he adopted an anchor as his trade mark, and used such trade mark on his circulars, billheads and letters; and had the same mark stamped upon the metal labels (called in the trade tallies) attached to each bundle of wire of a certain quality. The wire made of such quality, became known in the trade as the "Anchor Brand Wire," and acquired a high reputation, so that the "Anchor Brand Wire" was greatly sought. The defendants also manufactured wire, and put upon their labels as a mark, a crown and anchor; the crown being small and at the top of the anchor; and they sold their wire with such mark. On an appeal from V.C. Wood (who had at the hearing of the cause, directed a perpetual injunction) (d) Note.-It is submitted that looking at the decision in Burgess v. Burgess (cited ante, p. 32 et seq.) it may be doubtful whether this case would be followed in a case having somewhat similar circumstances. (e) 1 De G. J. & S. 185. to Lord Westbury, C., his Lordship dismissed the appeal, treating the plaintiff's trade mark as property; and holding, even assuming the defendants to have been ignorant of the plaintiff's trade mark, that they must still be restrained from using it. Upon the authority of this case, and of Harrison v. Taylor (f), and Millington v. Fox (g), it may be taken as now settled law, that it is no defence, where there is actual imitation of a trade-mark, to say that the defendant was not aware of the existence of the plaintiff's trade mark. It seems in fact obvious that if a trade mark is treated as property, then the ignorance of A., of the existence of B.'s property, cannot justify A. in taking that which is B.'s property. In Braham v. Bustard (h), the plaintiffs were soap manufacturers in London. In 1862 they introduced into the market a superior kind of white soft soap, which they sold under the name of "The Excelsior White Soft Soap." White soft soap, simpliciter, had been long known as the result of a chemical process; but there was little or no demand for it, till the plaintiffs had introduced it into the market. In June, 1863, the defendant began to manufacture such soap, and sold it under the name of " Bustard & Co.'s Excelsior White Soft Soap." The V.C. (Sir W. P Wood), after analysing the correspondence and the conduct of the defendants, and comparing the use of the word Excelsior, forming part of the plaintiff's designation of their soap, with other specific words used as a trade mark, concluded thus: "If the defendants had not desired to obtain an unfair advantage of the reputation of the plaintiff's goods, they would have called their soap " Victoria White Soft Soap," or " Royal White Soft Soap," or would have used some similar name. And his Lordship granted an injunction. (f) 11 Jur. N.S. 408. |