TRADE MARKS

Evening Post, Volume CVIII, Issue 76, 26 September 1924, Page 8

TRADE MARKS

ASSIGNMENT FROM GERMAN FIRM ACTION OVER LYSOL DISINFECTANT. An application for declarations that plaintiff was entitled to be registered in New Zealand as the proprietor of the trade mark "Lysol " was heard 'before the Chief Justice (Sir Robert Stout) at the Supreme Court this morning. The parties were Lysol, Ltd., having its registered office in London, and Pearsons's Antiseptic Co., Ltd. Mr. M. Myers, K.C., wjth Mr. Evans, represented the plaintiff, and Mr. J. Prendeville the Registrar of Patents and the AttorneyGeneral. Pearson's wero not represented. Plaintiff claimed to have obtained all rights for New Zealand in respect to the trade mark ■" Lysol," and claimed that certain orders made under the Patents. Designs, and Trade Marks Amendment Act, 1914, and subsequent, regulations and orders had. lapsed. ' ' Mr. Myers said that in 1914, shortly after the-oivar broke out, there were a number of emergency statutes. In the Patents and. Designs Act the GovernorGeneral was given power to deal with any rights of proprietors, in cases where they belonged to an enemy nation. The statute expired six months after the wan In England the trade mark " Lysol " was avoided, but in New Zealand it was not. The trade mark belonged at that-time to a.German firm, and the defendants, made application for the avoidance orsuspicion of the trade mark in New Zealand. The Governor in Council suspended the registration, not generally, but in favour of Pearson's. Special provision was made that a special marking had to be used, and it was termecU'.British Lysol." . In 1920, when the -time came for renewal, Pearson's did not renew, but the agents in New Zealand for the German firm renewed. The Act and regulations had gone out of existence. The legislation had not been formed to confiscate German property, but to protect the British public. U there had been no emergency legisla-1 tion, the German proprietors after the war. if permitted by the Peace Treaty, could have, proceeded against anyone who had infringed their rights. They held that any suspension had now "lapsed. Ine original applicant had been a German company, but the present company was purely British, even in its constitution, as far as he knew. This company had secured an assignment of the■rights of all parties who had a right to the registration prior, to ' 1914. The question was whether Pearson's retained any rights. Plaintiffs asked fora declaration that the suspension imposed be cancelled, and that they be registered as proprietors of the trade mark.

. QUESTION OF GENERAL USE OF NAME. Mr. Prendeville,.meriti6n'e<3 that suspension was in; favour of one or more, while avoidance meant the general throwing open, of the' trade mark to the trade. A question had been as to whether the term " Lysol " had not become in general use •as applying to a parti- . cular class of disinfectant, as "linoleum1' had become in general use, referring to a particular class of floor covering. They had considered whether it: would be advisable to include it under the provisions of the Foods and Drugs Act, setting a standard. His Honour remarked on the absence of the defence, and said they should have appeared if they wished to test the case, after consenting, as they did, to the proceedings. The parties had' assumed that- the. suspension was valid. ! He decided that the suspension became I inoperative six months after the war llaintift had to give, to the satisfaction of the Registrar, evidence of the assign- I ment of the rights to plaintiff, and was then entitled to be'registered as proprietor of the trade mark.. .There was nothing to prevent registration being effected if the Registrar saw no reason to the contrary. An order would be made thht plaintiff was entitled to be registered as proprietor.