USE OF A NAME

New Zealand Herald, Volume LXX, Issue 21577, 23 August 1933, Page 12

USE OF A NAME

COMPANIES AT LAW AN INJUNCTION SOUGHT JUDGMENT FOR DEFENDANTS "This ease has given me a great deal of trouble," said Mr. Justice Hcrdman giving judgment in tho Supreme Court yesterday in tho action taken by G. J. Coles and Company, Limited, of Australia, to restrain an incorporated company in Auckland from using the title of "G. .T. Coles (N.Z.), Limited." "I have gone into the facts at length and into tho various eases, and I am much indebted to counsel for the care they havo taken in presenting their arguments," added His Honor. Mr. Barrowclough and Mr. Elliot for tho plaintiff and Dr. Williams for defendants, Norman Harris Dixon, Samuel Arthur Schneidoman and Owen Watson llaiugcr. His Honor said the plaintiff asked for an injunction to restrain tho defendant company and the other defendants from using the name. "G. J. Coles (N.Z.), Limited," or any title or description including tho name "G. J. Coles" in connection with its trade. Tho plaintiff company was a large and prosperous commercial houso with headquarters in Australia, and it was well and favourably known throughout tho length and breadth of that country. It had a chain of stores throughout Australia and in the financial year ending in 1932 its total sales amounted "to £2,130,542. Although enjoying in Australia a high reputation for efficiency and soundness, it did not figure with any promincnco in tho activo commercial life of New Zealand. The defendant company was registered last November as a private company with a eapital of £6OO, and it did business on tho "mail order" principle. "Insuperable Difficulty"

"I have no doubt whatever," said His Honor, "that tho name G. J. Coles (N.Z.), Limited, was deliberately selected for a definito purposo and that the purposo was to lead people in New Zealand to believe that if they traded with the New Zealand company they were ih fact trading with the Australian company. I believe the founders of the defendant company believed that tho use of the name selected would lead people to conclude that Coles and Company, of Australia, was in business in New Zealand, and that they expected to profit by that, piece of deception. What other possible reason could the company have had for selecting this particular fancy name? "With the defendant company I have no sympathy, and my natural inclination is to interfere and prohibit it from using plaintiff's name if I can. But the caso .presents this difficulty, and ft is one which appears to me to be insuperable. I have examined the evidence carefully and I can discover no satisfactory proof that there probably will be injury to tho pockets of the plaintiff company. To alter slightly the words used by Bowen, L. J., in Borthwick v. the Evening Post, 'there has not been shown to bo within any measurable distance any probability of injury to plaintiff company.' Judgment Without Costs "There is no proof at present that the Australian company has been deprived, or is likely to be deprived, of profits. There is no proof of diversion of business or of a likelihood of diversion of business. There is no proof that plaintiff's reputation has in fact suffered, and as to a probability of tho reputation suffering. I can only speculate. The Australian company may trade in New Zealand. On the other hand, it may elect to continue to leave Zealand out of its calculations. If residents of New Zealand purchase goods in New Zealand from the defendant company no injury is done to the plaintiff company, for, in spite of evidence of isolated transactions, I think that it can be asserted definitely that the plaintiff company does not trade with New Zealand. In short, I can find no proof of tangible injury, nor can I find proof that injury is likely. Judgment will therefore be for tho defendant company, without costs."