SUPREME COURT Cordial manufacturer seeks injunction

Press, Volume CXI, Issue 32564, 25 March 1971, Page 13

SUPREME COURT Cordial manufacturer seeks injunction

Decision was reserved by Mr Justice Macarthur in the Supreme Court yesterday on an application by Edmonds Nabob, Ltd, cordial manufacturer, for an interim injunction to prevent Stuart Willetts, manufacturer and merchant, from carrying on business as a cordial manufacturer under the name of Kaban.

The ground for the application, as stated in the plaintiff company’s application, was that the defendant was deceiving or was likely to deceive the public in the belief that the businesses of the plaintiff and defendant were parts or branches of the same business. Mr A. D. Holland appeared for the plaintiff and Messrs J. G. Leggat and N. D. Thomson for the defendant, who opposed the application. Evidence was presented by way of affadavit. Presenting the case for the plaintiff, Mr Holland said that in his affadavit, Harold William Revell, the managing director of T. J. Edmonds, Ltd, said that the plaintiff company, a subsidiary of T. J. Edmonds, Ltd, was formed in September, 1969, to take over a business manufacturing cordial at 9 Feilding Street. It carried on business at that address until January, 1971, when the business was transferred to Kaiapoi. The defendant was the manager and a director of the plaintiff company from September, 1969, until January of this year, Mr Holland said. After he ceased to occupy those positions he began manufacturing cordial in the premises formerly occupied by the plaintiff company at 9 Feilding Street, using the staff formerly employed by the plaintiff company and its Post Office box number. The defendant was asked to change the bottle label he was using on his product because of the similarity to that of the plaintiff’s label, and to give up the use of the title Kaban. He agreed to change the label, but refused to discontinue the use of the name Kaban, said Mr Holland. The name Kaban did not sound like Nabob, but they both had an Eastern flavour and had some similarity when looked at on the label. Defendant’s case The defendant, in his affadavit, said that the name

Kaban was an artificial word. The name he had originally sought was Yuban, but as that was not available he adapted it to Kaban. He had tried to design a label which was reasonably different in lettering and colouring and used a smiling sun emblem, the defendant said. He had no desire to pass off his goods as being in any way connected with Edmonds Nabob, Ltd, and had advised that company that he would design a new label. He had arranged to withdraw stock with the original label and replace it with stock with the redesigned label. Mr Leggat said that the label now used by the defendant was both different in colour and colour combinations from both the original label and that used by the plaintiff. He denied that there had been any fraudulent intent or intention to mislead on the part of the defendant