IMPORTANT TRADE MARK CASE.

New Zealand Herald, Volume XLIV, Issue 13481, 7 May 1907, Page 5

IMPORTANT TRADE MARK CASE.

LEVER BROTHERS"' StJCCE^S-

FUL APPEAL.

[BY TELEGRAPH. —PRESS ASSOCIATION.]

Wellington, Monday. The Appeal Court gave judgment' to-day in the case of Lever Bros., Ltd., v. Newton and Sons, Ltd. Tins was an appeal from & decision of Sir Robert Stout, Chief Justice. The appellants are the manufacturers of the well-known " Sunlight soap," and have large business premises in England and Australia. The respondents are soap manufacturers at Kaiwarra; neS.r Wellington. The appellants - are the registered owners of four trade marks, consisting of the words, " Sunlight Soap,", " Sunlight," "Sunbeam," and "Sunshine." . They also print on their packing cases by way of advertisement, a representation of a rising or a setting sun, and the words, " Sunlight soap." The respondents applied to the Registrar of Trade Marks at Wellington for permission to register as a trade mark, with regard to soap, the words, " Rising Sun," and the appellants objected on the ground thai; it was so similar to their marks as to be calculated to deceive the public. The registrar, however, allowed registration, and on appeal to the Supreme Court, the Chief Justice affirmed the decision of the registrar. The judgment of Mr. Justice Williams was read by Mr. ; Justice , Denniston. ■ " --.-'■' -.'". \

His Honor said he" did not think the judgment in the Court below sufficiently recognised the distinction between cases where application was made to register a new trade mark and actions for infringement of an'existing trade mark. In the former class of cases the principle was that if it was doubtful whether or/not the new mark would be calculated to deceive the public, registration should not be allowed; but it was still open to the respondents to Use the , mark, and the fact that registration was refused : would not necessarily give the' appellants the right to succeed in an action for infringmeht.v In this case, although the get-up of the respondents' soap was entirely different from that of the appellants, if they were allowed to , register the words " Rising Sun" they could alter the get-up of their packets without going beyond the limits in such a manner as to be calculated to deceive the public as to the manufacture of the soap. It had not been proved affirmatively to the Court that the mark could not be so used as to be calculated to deceive. They could have chosen a mark entirely unlike the appellants' marks, for .they had the whole of the English languare at their disposal. His . Honor was of opinion that the appeal should be allowed.

Justices Denniston,. Cooper, - Chapman, and Button, in separate '" judgments, concurred ; Mr. Justice Chapman stated that he concurred with great hesitation.

The appeal was allowed, with costs oB the , lowest scale.