USINGTRADEMAfiK

Evening Post, Volume XCVIII, Issue 116, 13 November 1919, Page 7

USING TRADE MARK

ALLEGED INFRINGEMENT

JEYES 1 FLUID CASE

The^lnst case for trial in the present Criminal Sessions of the Supreme 'Court came before his Honour Mr. Justice- , Hosking to-day, presenting certain'.■'uncommon features of interest to the'commercial world, in that the..accused,..onW, Daniel Moar, was charged witK'the falsification of a trade mark, wjlh intent to deceive and defraud the original owifeirs. The action was taken on the information of Arthur C. Nottingham, New Zealand attorney for the Jeye3 Sanitary Compound Company, and the indictment was ; that the accused did falsely, apply '"• to goods a certain mark, so nearly resembling the registered trade mark of the Jeyes Sanitary Compound Company, of 64, Cannon-street, London, manufacturing chemists, as. to be calculated ,(;o ■ deceive, with intent thereby to "defraud the said company. The offence was alleged to have been committed on ?Oth; January last. ■ ■ • .-. ••/■•■"'» Mr. P. S. K. Macassey conducted-the prosecution for the Crown, and Sir John Findlay, K.C., with him Mr.-'X' fidwards, appeared for the accused. :;■' Mr. G. J. H. Bell was foreman' of the jury- ' ': :::;:; ./■ ■ The accused pleaded not guilty. ■>:,.. Mr. Macassey, in presenting the case, to the jury, described the two registered trade marks of the Jeyes Company, the nurse trademark on bottles,. representing a nurse washing her hand, and a rising sun. trademark on tins. The accused bottled a fluid resembling Jeyes Fluid, using what was practically the trad© mark of the English company, for which Mr Nottingham, as attorney, had tho sole right of supplying to New' Zealand wholesale. , ■'..,•;' Sir John Findlay objected that,the offence was alleged to have been'committed on the 20th January last,;-and the rising sun trade mark had not "been registered in New Zealand until :13th September, 1919. '•'; ;' «■, . His Honour pointed out tJiat the Wade mark was registered in England, and-pro-tected in New Zealand under-reciprocal Orders-in-Couneil.

Mr. Macassey outlined the initialiproceediugs taken by the representative of the owners of the trade niark with ai view to a provisional settlement, the de-. fendant admitting he had broken the law, and accepting an injunction. ■ The labels, _. block, and bottles were given up by the- *: defendant on the 28th March last^'and afurther arrangement was reached in. Juno, but Mr. Nottingham would not accept it. A tin had been obtained1 marked Joy's Fluid, under the Kising, Sun! trade mark. Subsequently 100 dozen bottles with, similar marking and a number of "nurse" labels were found at fcho accused's premises, 41, Adelaide-road. Neither the tin nor the bottles contained' Jeyes' Fluid. . Mr. Nottingham had not I been actuated by any motive,of,,,vindictiveness in taking proceedings, but ha ■■ wished to put a stop to the practice,. which the accused.had persisted in:con- • tinuing. „.:.," .■„.. ,i'".. * His Honour: "The public has to be): protected also."

Arthur Charles Nottingham stated!; that he was exclusive agent for: Jeyes hi. New Zealand'for all quantities above a» quai't. The company did not sell '..anyi . larger quantities than quarts, except) through their attorney. He received commission on all sales... The witness., de- " tailed the proceedings taken agadnsti. Moar, with a. view to ending the' prac* tice which was the subject of complaint, Sir John Findlay said that.the whole question was one of honesty: The; defence would not' be that there wasnol technical, infringement of. the' •! teadu mark. The whole defence would be" thaf the labels had come into'the hands, ol* defendant from his predecessors, and'tiiatf the defendant was. entirely ignorant of any infringement; that he had acted with an honest mind. The witness gave further evidence aa to the arrangement) which the accused had not kept, that he should cease the practice of using the faJse labels, ia.'ielU ing a spurious fluid. Tie testimony,was on the lines of that given in tlieprop coedings before the Lower Court. ■ Witness attributed a falling off of £4GGO? ia receipts to the action of the defendant. In cross-examination, the witness saidl he objected to any bottling bj the-Ac-cused 4 of Jeyes' Fluid .under, his label. The accused agreed tc discontinue selling > an article known as Jeyes' Fluid - which! was not genuine. Moar had been perfectly frank in an interview between the;, parties and their solicitors. He had/W malice against Moar. ' His Honour : "Did you assume tha.fi nobody could get bulk Jeyes' Fluid in New: Zealand except through you?" "Yes, your Honour." " Continuing, the witness said that the sale of quantities of a hundred and afterwards fifty gallons by / Kemp'thorne, Prosser, and Co., to the accused/ presumably for bottling, was not in- accordance \yiith an understanding" between witness and that firm. HoVhadi never supplied D. W. Virtue and-Co. of the United Friendly Societies with'fluitf ■ directly. He did not know of a firm in Auckland named Frederick G. Leonard! < and Co., who were importing large quantities of Jeyes' Fluk* in. bulk., , ,';. • Witness admitted that' a label put in by counsel for the defence was similar to that used by the accused. The firm using such a, label would be dealt.!with. He did not know where they .were- getting the fluid from in bulk and bottling it. . Professor EaSterfield gave expert technical evidence to the effect that a number of samples of the fluid in bottles labelled as Jeyes by the accused's firm, did not correspond to the genuine. article under test. ■ . . ' ' ';'":..'.,'!' To Sir John Findlay : Not having the secret recipe, he could not tell what was exactly Jeyes Fluid, but he might assumethat no reputable firm would turn, out samples so widely different, as wore the sets of samples tested. At this stage the Court adjourned till this afternoon. - '■- (Proceeding.) ■ ...