A TRADE NAME.

New Zealand Herald, Volume LVIII, Issue 17843, 26 July 1921, Page 7

A TRADE NAME.

DISPUTE REGARDING USE.

AN INJUNCTION SOUGHT.

FAMILY BUSINESS DIFFERENCE.

An action wa« commenced 'before Mr. Justice Salmond in the Supreme Court yesterday in which J. J. Craig, Ltd., coal, and shipping merchants (Mr. Meredith and Mr. Learv, instructed by Messrs. Earl, Kent, and Massey) applied for an injunction against Ernest Arthur Craig and Herbert Richard Craig, carrying on business under the name of " The Craig Transport Co." (Mr. R. McVeagh and Mr. Gould), restraining them •for applying for the registration of Uie firm under that title.

The statement of claim set forth that toe plaintiff company, one of the largest transport and carrying companies in New Zealand, t was familiarly referred to as jAT^? S -" Il bad been incorporated in 1900 tor the purpose of acquiring the business conducted by Joseph James Craig, now deceased. On the incorporation J. J. Craig held 47,500 shares, the remaining 2500 shares being allotted among certain of his brothers, Ernest Arthur Craig holding 500. On the death of J. J. Craig in July, 1916, he bequeathed certain shares to each of his "brothers and sisters, the defendant* each receiving 500. AUmt 1917 E. H. Craig purchased from ins brother, Thomas j" ftaig. a further 500 shares at £1 each, thus becoming the holder of 1500 shares and the second largest shareholder The trustees of the will of J. J. Craig were Jessie Craig, his vidow, Err est Arthur Craig, his brother, and one of the defendants, and James Campbell Craig, son of the deceased. Shortly after the death of .1. -I- Craig. E. H. Craig was appointed managing director of the plaintiff company at a salary of.£looo a year, and he heid office until September, " 1919, when he retired, transferring all his shares to Jessie t raig and James Campbell Craig at 25s .i share. The defendant, Herbert R. Craig retired from the employ of the plamuff company about the same time-. Alleged Confusion to Public. Later IT. R Crai- purchased a small carrying business with a plant, of six carts and 20 h.r.-es, and was joined by E. H. Craig, using the name of " The Craig Transport Company." It was contended that the plaintiff company and its predecessors had continuously for upwards of 50 years carried on its business, and was universally referred to as " Craigs," and under such name the business had acquired a. widespread and wellfounded reputation It was alleged that the name adopted •by tie defendants would deceive many persons in New Zealand and Australia, who might desire to deal with the plaintiff company. Confusion had already taken place, and a claim for damages had been made against the plaintiffs instead of against the defendants. Th e plaintiffs therefore asked that a writ of injunction be issued restraining the defendants from applying to the registrar of joint stock companies for registration tinder the title mentioned. The Statement of Defence. The statement of defence denied that the plaintiff company was familiarly referred to as "Craig's," affirming that it was, and had been since its incorporation, familiarly known as "J. J. Craig's" or "J. J. Craig," and was, and had been, precluded by "The Companies Act, 1908," from acquiring any right to or from advertising or carrying on its business under the name of " Craigs." The defence farther set out that the plaintiff company, in addition to the business of a transport and carrying company and coal merchant and shipping agent, had carried on the business of a brick, lime, and cement manufacturer, and dealer, and machinery, bonedust, wool, flax, wood, ar„d sand merchant, a shipowner and a general merchant. The plaintiff company, it was alleged, was better, known to the public as a merchant dealing with and contracting for the supply of the commodities mentioned than as a transport company, the carrying business being largely incidental to the supplying of these commodities. It was contended that the plaintiff company had knowledge of the defendants' advertising, their trade name, bat had made no objection to advertisements, nor to the use of the trade name (but bad only objected to the registration of a, company under that name). Lawful Acquisition Claimed. fe The defendants claimed to have lawfully Squired their trade name. They admitted that the company had not yet been registered by the registrar of joint stock companies, but stated that their application, after having been approved, had been declined owing to the protest of the plaintiff company, the registrar finally considering that it was a matter which should be settled by the Courts. It was contended that the title of the company had not deceived, nor was it intended or likely to deceive any person who had traded or desired to. trade with the plaintiff company, that the defenuants were well known by name and reputation, that their retirement from the plaintiff company was widely known, and that their entry, into competition with the plaintiff company was widely known. The surname "Craig" in the title was of importance to the defendants, who were well and favourably known in Auckland, and it was alleged that the plaintiff company claimed to monopolise the business name of Craig.

Extent of Plaintiffs' Business. All the evidence was put in in the form of affidavits. That in support of the plaintiffs, as outlined by Mr. Leaiy, indicated that carrying was the major part of the plaintiffs' business, the return froir this source being about £12,000 a month. It owned over 200 horse vehicles, besides a number of motor vehicles, and employed nearly 150 horse drivers. Mr. Leaiy said that in view of the wide reputation of the name Craig with transport, the objection was against the combination of the name of "Craig" with the term " transport," by another concern, and particularly with the prefix " The." He referred to instances of confusion which already had occurred, and said that the title employed might suggest that the plaintiff company had started a subsidiary business to deal solely with its canying. Mr. Meredith addressed the Court on quest k>ns_ of law, and Mr. McVeagh replied citing many cases to support the defence. The sweeping nature of the plaintiffs' contentions, if upheld, would prevent the use of the name of Craig in conjunction with the terms of coal. lime, brick-sellers, etc He contended that the distinguishing word was "transport," a term commonly used in America, where one of the defendants was attracted by it. At considerable length he dealt with the question of ordinary care and intelligence as applied to the public. The argument will be resumed tliis morning.