FROZEN MEAT BRANDS.

Press, Volume XLVI, Issue 7443, 17 October 1889, Page 6

FROZEN MEAT BRANDS.

JUDGMENT D? THE SUPREME COURT. In Banco yesterday his Honor Mr Justice Denniston delivered judgment in the ease of the Canterbury Frozen Meat Company v the Christchnrch Meat Company, as follows :-— " The plaintiff Company and the defendant Company are rival Companies, carrying on, in or near Christchurch, the~business of freezing and exporting mutton. The plaintiff Company alleged that the defendant Company has commenced and threatens to conwrongfully, fraudulently and without the consent of the plaintiff Company, to export mutton in wrappers marked with the trade mark of the plaintiff Company, that is the words " North Canterbury, N.Z." in imitation of such trade mark as used by the plaintiff Company, and asks that the defendant Company be restrained from using the said words in the manner complained of, or in any other way- likely to induce persons to believe that the defendant Company's mutton ,i» the mutton of the plaintiff Company. ' It also asks for a declaration that it Is entitled to the exclusive use ttt such words as a trade mark. It appears that the plaintiff Company commenced tbe business of freezing and shipping mutton some seven years aeo, In premises near Christchurch. It was then the only Company so doing business in Canterbury, and marked the wrapper, in which such carcase was enclosed, with the words •"Canterbury, N.Z." as a distinguishing mark. In ISB7 a Company called the South Canterbury Refrigerating Company, Limited, commenced In Timaru in the Southern part of the province, a similar business to that of the plaintiff Company, and not unnaturally described and marked the mutton as "South Canterbury, N.Z." Upon this the plaintiff Company, properly anxious .to retain the benefit of the reputation Its product seems by this time to have acquired, and to prevent any confusion -with the product of tbe rival company, determined to adopt as its trade mark or brand the words " North Canterbury, N.Z." There seems to have been some special reason for welectinj- the mark, and distinguishing it from the other Company, while retaining the words previously used. "North Canterbury," as ageojsraphical entity, seems to be very indefinite. Even the affidavits filed by the defendant Company show that it sometimes includes the Canterbury district. (see Air Morrow's further affidavit, par. 1), whilst the affidavits of the plaintiff Company place it sometimes north of Christchurch, sometimes north of the Eakaia, and sometimes north of the Ashburton. The plaintiff Company does not pretend to draw its supplies only from North Canterbury, whatever that may include, and the selection of these words as a trade mark or brand may be said to be almost accidental and arbitrary. Under tbe altered brand the mutton of the Company appears to have acquired a reputation in the English market, and to be asked and sold as n North Canterbury " mutton. In the beginning of the present year the defendant Company was formed. It carries on business at Islington, near Christchurch. In determining upon a brand by which it might describe and distinguish its product, and under which it might acquire whatever reputation and character such Sroduct might deserve, it had, of course, efore it any word, or combination of words, device, or symbol It might select or devise. "It appears to be," says the Lord Chancellor, in Wotherspoon v Currie (5, E. and J.- Appeals, p. 515), " that an honest manufacturer setting up business would take great care, and all the more because fee was setting up business where Glenneld atarch had been manufactured and sold, to disconnect his name with any name which had become exclusively a designation of an article manufactured try the appellants." The directors of the defendant Company decided to •Sleet the Initials of the Company "CM. Co., Ltd." over the words " North Canterbury, N.Z." Apart from the fact that this Includes the brand then used by the plaintiff Company, it is difficult to understand that selection. The words form no part of the name of the Company. Its Headquarters are near Christchurch, in the extreme east of the province. The Company does not pretend that it draws, or proposes to draw, its supplies exclusively firam the north of whatever line may be ultimately fixed upon as the southern limit of that vague geographical expression "North Canterbury." Mr Morrow's affidavit, while In par. 7 alleging that the object of the brand was to describe " the name of tbe district in which the said mutton has been produced, slaughtered and frozen," in par. 10 cannot go farther than to allege that the mutton exported by the defendant Company is produced within and comes from the district of .North Canterbury generally, and it was admitted in the. argument that the Company will buy and freeze suitable sheep wherever bred or reared. I should have been glad of some independent evidence, say from South Canterbury, as to the exceptionally high character, as a mutton producing country, of the land between the Hurunul and Rangitata, which has given, or is.to give, such soeclal value to North Canterbury as the brand' of the future. Nor can I Ignore the fact that one of the Directors 'ot the-plaintiff Company had joined the Directorate of the defendant Company; •that the selection of the brand seems to -have been made with a full realisation of .the possible, protests of the plaintiff Company, and after taking legal opinions as to its rights, and that the bags were by the orders of the defendant Company printed from the actual stencil plate used to print the bags of the plaintiff Company. The only conclusion which I can draw from -•• these facts is that those responsible for the management of the defendant Company have deliberately and advisedly adopted the words which have become identified with the product of the plaintiff .Company, and under which it haa gained A name and reputation, with the intention of obtaining unearned a share of that r -_ame and that reputation. As to the xnaralityof such a transaction there can, I thin--, be but one opinion. I sit here, however, to decide not commercial ethics 1 bat commercial law. If a defendant has an Abstract ''right to do what he has done, the Court must permit it, however opposed to. one's moral sense." (Vice-Chancellor Sir W. Page Wood in Braham v Bristard, XH. and __L 447.) The question—one question at least —is, has the plaintiff Company "obtained the right to the use of the words '* North Canterbury," as applied to frozen ' mutton, so as to entitle them to have the ' 46fehd-Lnt Company restrained from using them? The plaintiff Company claims this -light as against the defendant Company, "i&t-te first place by virtue of having registered the words "North Canterbury, ■JUL,* under the Trades Marks Act, 1866. It is admitted that it did so register these words in January, 1889. I find considerable difficulty in arriving at a conclusion as to the effect of registration under this statute. Looking, however, at the very , wide language of sections 2 and 5, and at the absence of any limitation other than that existence of a previous registration of ■ the same or a similar mark to what may ■ .be registered. I cannot think it can be in- " tended to do more than what is definitely ' ' enacted, that is, to render penal certain 'fraudulent proceedings in the way j ot forging and counterfeiting regis- < - tared marks. Marshall v Hankins, ' :<4 NJZ. L.R., S.C. 59), although • defended on grounds not affecting this < cum, shows, I think, that the statute has < not the effect contended by the plaintiff ' Company. If it is otherwise, and theregis- - tration gives an exclusive use, except (as * enacted in section 8) in case of any suit ' instituted to try the right of any person 1 to have had such trade mark registered, I " should be disposed, if possible, to treat < these proceedings as, or to convert them ' into, a suit to test such right. The point • is d-stinctly raised by par. 7of the state- ] ment of defence. Apart from any statute * the claim of the plaintiff Company rests < upon the property in the combination of "j words as applied to products under which * these products have obtained acceptance i and reputation in the market. There are * several cases in which property in trade c marks consisting of geographical names ■■ has been sustained. (His Honor then re- *• ferred to the words " Anatolia," " Teixo," I and "Leopoldshall"). Iv the Anatolia •■ case six weeks' user was held sufficient to t ■ Hive »nch a right. In tihe present case the a . plaintiff Company never treated or pre- " tended to treat the name as a geographical ** one, indicating the origin of the products. 1 It seems to have adopted it as I have said t variation of theorigi- "» wi?!^J?- s * tfo - orthenrel erredatsome r «.._*-_-?- *V& of Wotherspoon v s Sj___UrS?tSr ten ? dd Starch caseTand latec_se In- t £-£v 7 d-2f^ c the 0-fendant Com- * :gpu@£|*g££: duced at a place _ I **£■**-<* to use as a s wm» <rf a district which to_TiSi__2 _ at_L f £ t d £? l^ < ? S9 " •mnaaSffSo * ■«««-ptto localise as a place _ral__l J while as I have I _

that Ithe supply of raw material is not taken exclusively from North Canterbury. [His Honor then quoted the Lord Justice s remarks in the stone ale case.] The plaintiff Company puts as a brand on its carcases words which happen to describe a geographical district. Under this, its goods nave acquired acceptance and reputation in the market. I think lam bound by the judgment in Thompson v Montgomery, ana that I must grant the injunction as prayed, and of course with costs. The plaintiff Company is however not entitled to the general declaration it seeks for, of a right to the exclusive use of the trade mark. Such a declaration would be valueless as against any but the defendant Company, and _ I cannot, besides, say that the words in some combinations might not be bona fide employed within the language of Lord Cranworth in Seixo v Provezande. Such a case, as he there says, if it should arise, must be dealt with on its own merits. My decision would make It unnecessary for mc to refer to the other branch of the case of the plaintiff Company—its right, Independently of Its claim to the words as a trade mark, to restrain the defendant Company from imitating the manner in which the plaintiffs wares are marked. As, however, I cannot pretend to say that I have arrived at the conclusion I have done as to the legal rights of the plaintiff Company without a good deal of hesitation, as it was not the opinion I held before the argument or during the argument, and* as the defendant Company may well wish to have the opinion of other minds on the point, I think I should state my opinion on all the questions in controversy. Apart from any question of trade mark, the plaintiff Company is entitled to prevent any carcases being put up and exported in wrappers so marked as to resemble their goods, and to make it probable that the one may be mistaken for the other. On this point it is needless to cite authorities. The difficulty in all the case 3 has been not to determine the plaintiffs right, but to establish the fact of a colorable imitation. Here the defendant Company has saved any trouble by copying literally the brand used by the plaintiff Company, employing in so doing the stencil block used by the printer of the j plaintiff Company's wrappers. It adds I tbe initials of its own name, but the similarity or identity in appearance is hardly I disturbed by this, especially as the plaintiff Company is in the habit of adding ' special devices to identify special shippers. The defendant Company attempts to show that the plaintiff Company has sustained andean sustain no damage by this. That ! the carcases are sold with the wrappers j ofE, and that they are not ordered oc sold jby the name on the wrapper. The simplest answer to this lies ia the fact that the defendant Company has thought it worth its while to adopt and imitate the brand. It is not necessary to prove actual misleading, only that the imitation is calculated to mislead purchasers, and this, I think, is obvious. Nor is it necessary to show any intention to mislead, though this, too, I consider proved. Indeed, this point was not seriously contested, and the main controversy on it was as to costs. The defendant Company contended that the plaintiff Company had rested its case mainly on the right to use the words " North Canterbury, N.Z.,"and that it had nowhere distinctly claimed for the imitation apart from this. I at-xee that the main question was as to the words, and that the claim for imitation might have been more distinctly asserted. The plaintiff Company, however, does not attack the whole action of the defendant Company. It sets out the proceedings of the latter in detail, alleging tbe use of identical wrappers, and the marking them with the words " North Canterbury, N.Z." in imitation of the trade mark as used by the plaintiff Company. The defendant Company knew exactly what it was doing, and alleged its right to do, and to continue to do, all it had done, lt had. in my opinion, deliberately and advisedly laid itself out to get the benefit of the plaintiff Company's brand. That being so, I cannot see that it can now object that the plaintiff Company confines itself to generally challenging the defendant Company's proceedings, and does not go minutely into every ground of action. The plaintiff Company was justified on the ground of imitation alone in seeking the protection of the Court, and if succeeding on that ground only, would, I think, under the circumstances have the costs of the action. For the plaintiffs Mr Fisher; for the defendants Mr Joynt, with him Mr Andrews.