LAW REPORTS.

Dominion, Volume 4, Issue 1071, 9 March 1911, Page 3

LAW REPORTS.

SUPREME COURT. A BULL'S HEAD AND DOG'S HEAD. BEER AND BRANDS. A dozen of assorted beer and stout, aud a corkscrew were arranged in the Supreme Court yesterday morning. The corkscrew lent a false impression, however, for the bottles were there in connection with a trade-mark dispute. The case, heard in Banco before Mr. Justice Ccoper, was an ap;>eal by Messrs. ■ Koad Bros., brewers and bottlers, ot' Kentislitoivn. London., against the application of Cowie and Co., of Dunedin. bottlers, for the registration of their trade mark. The petitioners set out that tho application for registration was lodged with the Registrar of Trade Marks in July, 1909. On August 8, 1910, the Registrar of Trade Marks gavo his decision allowing the application for the registration of the trade nifirk. Tho petitioner immediately gave notice of appeal, and the present hearing was the result of that notice. Cowie's reply was a denial that the trade mark, to which the application related, resembled, in the main, the registered trade mark to such an extent as to be calculated to deceive, and cause confusion in the trade. The features of resemblance, if any, were common to the trade, and no exclusive rights were held. They had used'the trade mark for seventeen years in New Zealand, aud also on sign boards used in the business, and no exception had been taken thereto. Mr. Young appeared for Bead Bros., and Mr. Van Haast for Cowie. Mr. Von Haast explained that Cowie's trade mark was a bull's head, and that of Head Bros.' a bulldog. The question to determine was whether a bull's head was so like a bulldog's as to deceive an intelligent person who was familiar with tho distinguishing characteristics of the Read Bros.' brand. The Menagerie on Labels. Alexander C'owie gave evidence as to similarity in the trade marks of some celebrated brands of beer and stout, and produced posters aud advertisements. Bulls, dogs, tigers, and stags' heads were all u?cd. . Their design was drawn up by a teacher in the School of Design, Dunedin. There had been no intention to copy Read Bros.' brand. For the petitioner's case, Young called Guy Johnston, of tho firm of Johnston and C'a.. Ltd., who arc North Island agents for Read Br.-*', beer. He said that tho beer was well known in New Zealand, and had been lons established here. It was known here as "Dog's Head" beer, and "Bulldog" beer. Walter A. J.eevers, traveller for Messrs. T. and \V. Young, and with 17 years' experience, gave evidence as to the popularity of Read's beer. 'This concluded the evidence. Mr. Young said that it would be seen from the evidence that Read's beer was well known for many years, and he suggested that when Mr. Cowie started business twenty years ago he honed by tho similarity of "the brand and the colours to pain something from the popularity of Read's berr. "Bull and Bulldog too Much Alike." Counsel submitted that Cowie did not take care- to make his label clearly different from tho other, as he could hove done. On the contrary, it was evident that he must have had the petitioners' design before him. Cowie had said that he selected a bull's head because his name was Cowie/ If that were so, lie should have chosen a cow's head, and petitioners would not have objected to that, but "bull" and "bulldog" were too much alike.

Not a Poly Bull. 'Mr. Von Haast said that the defendant had acted in complete bona-iides, and (lid not wish his beer to be mistaken for any other. II j v.-ould consent to an arrangement for keening tho colours distinctive. ;Tho. question, as nut by .a. certain judge, was whether the design would deceive persons of ordinary intelligence, not blind rucn or fools. Would a man who wanted a-bulldog be put off with a bull? Tho plaintiffs could have no right to a particular colour, and they could not claim to have a monopoly' of animals' heads. The two heads in" question were quite unlike, though the bull could have been made to resemble tho dog. His Honour: You might have mado it a "poly" bull. . In the course of further discussion, his Honour remarked that a bulldog was socalled, not 011 account of any resemblance to a bull, but because it was tho nature of the animal to attack a bull by the nose, and null liiiu down. - Mr. Von Haast: The name undoubtedly comes from bull-baiting. Counsel further pointed out that Read's beer was generally known as "Dog's Head Beer," not "Bulldog Beer," and thero was, therefore, no danger of confusion with "Bull's Head Beer." Mr. Cowio choso a bull's head because lie was shut out from using other strong animals,- and he wanted something connected with his own name. ' Nobody would use a cow's head as a mark for a strong liquor. Appeal Dismissed. His Honour, in giving his decision, said that one of; the beers'was of English make and the other colonial, and it was suggested that those who wanted to buy the English beer might bo put oif by the colonial. That was' of some importance, because New Zealand brewers wero now compelled to put on the bottle* "Brewed anil bottled in New Zealand." Taking that in conjunction with tho trade mark, it was impossible to his mind that even the most unwary purchaser could bo misled. But eliminating that feature of tho case, and considering the two trade marks alone, it t appeared to him that thero was 110 reasonable nor even possible ground for the belief that the one was calculated to deceive the purchaser into tho belief 'hat ho was.buy)ng tile other brand. It was impossible for a person of ordinary intelligence to say that, on the most casual inspection ho would mistake a bull's head. for a bulldog's head. Further, in tho label itselT, as distinguished from, tho trade mark, thero was nothing to indicate to tho buyer that he was buying Englislr'Biilldog or Dog's Head beer, 'i'ho words, "Cowie and Co." appeared in bold letters.' The artist had drawn a good representation of a full's head,, without making it look at all like a dog's head. He considered that there was no possibility of the one article, being mistaken for tho other. Tho appeal would, therefore, be dismissed, with 10 guineas costs, and witnesses' expenses. Mr. Young indicated that his clients would probably appeal. LANDLORD AND LESSEE,

COMPLAINT ABOUT A BUILDING. The conclusion of the case, William and Robert Taylor, of Wellington, bakers, v. Martin Kennedy, of Wellington, and Felix Campbell, of Ciroymonth, was heard yesterday morning by Mr. Justice Chapman. 'i'he claim is in rcspect to the ercction of a baker's shop at the corner of Adelaide Road and King Street, and' the sum claimed is .ClliO. Mr. A. L. Ilerdman appeared for the plaintiffs, and Mr. M. Chapman, K.C., and with him Mr. G. Fell, for the defendants. Sir. Chapman, in his address, contended that the plaintiffs had waived all patent defects by taking possession of the building, and he argued further that the measurements on the sketch plan, produced, could not possibly have been contended to bo taken as accurate. Ilis third contention'was that the plaintiffs had no right to increase the amount of their claim beyond the <£100 claimed when the caso was in the Magistrate's Court. Mr. Ilerdman submitted, in connection with the last point, that if there had |j;en any irregularity it had been waived, as all along the defendants had treated tho claim as if the plaintiffs had a right to increase it. 110 contended that it was the duty of the defendants to give rooms and ovens of tho dimensions shown in the sketch plan, and, if n building so erected would not go 011 tire section, to provide the additional land necessary to accommodate it. Ilis Honour reserved his decision. DIVORCE CASE. The divorce suit, Margaret Mitchell v. W. I'. Mitchell, wife's application for dissolution of marriage on the ground of misconduct, was heard by Mr. Justice Cooper yesterday. Mr. D. S. Smith appeared ior the petitioner, and Sir. 'Wilford for the respondent. His Honour

granted a rtocriK! ni>i, to he made absolute within three months, the v.il'o lo have (lie intoiiiu custody of the children, and lo he paid lnaiutciinuce for thom at Us. a wool;. Mr. Wilford, who did not oppose Iho petition, appeared merely on the (jucsliou of maintenance.

THE WIDOW'S POSITION. A PAHAUTAXUI CASE. Sarah Nieol. widow of (lie lato Robert Nicol, of I'alnuitanni, applied for an order that Himu prnviMnn should Ire made for herself and her children out of her late husband's estate, and for a child born after the will was made. Mr. Justice Cooper, after rending affidavits and hearing argument by Mr. Young for the applicant, and Mr. Von ITnast for (lie trcßiitris, Mrs. Flygcr, made an order awarding -i-1 for the support of the widow and children, with liberty to flis parties to apply for a further order, and liberty to the widow to apply for a capital share of the estate for the youngest child under the Family .Protection Act. Costs five guineas on each side were ordered to bo paid out of the estate.