CONCERNING JEYES' FLUID

NZ Truth, Issue 749, 25 October 1919, Page 5

CONCERNING JEYES' FLUID

AN ALLEGATION OF PRAUD

Why Criminal Proceedings Were Instituted

The Onus Ob Defendant Moar to Prove That He Did Not Act With Intent to Deceive

A case possessing. features of interest to 'the commercial community was commenced m the Wellington Magistrate's Court on Friday last, before Mr. W. G. Riddell, S.M., m which Arthur Charles Nottingham, of Christchurch, and New Zealand Attorney for Jeyeß's Sanitary Compound Company, took criminal proceedings aginst Daniel Moar, trading as the Dominion Proprietary Company. The proceedings were laid under the Patents, Designs, and Trade Marks Act, and Moar was charged with falsely applying to goods a certain mark so nearly resembling the registered trade mark of the Jeyes Sanitary Compound Co., manufacturing chemists, of London, as to be calculated to deceive and with intent thereby to defraud the latter firm. Mr. P. J. • O'Regan applied for the prosecution, and Sir John Findlay, K.C., for the defence. Sir John Findlay intimated that

MOAR PLEADED NOT GUILTY, and desired to be tried by a jury. Depositions were accordingly taken. Mr. O'Regan, m opening, said that Nottingham was sole New Zealand Attorney for Messrs. Jeyes, and that company did not sell any fluid m bulk, that is, larger Quantities than quarts, except through Nottingham. The latter at no time had given permission for any person to manufacture, or bottle the fluid. In January last, Nottingham commenced civil proceedings against Moar, claiming damages and an injunction, such proceedings being based on the fact that Moar, under the name of .the Dominion Proprietary Company, had been dealing m what purported to be' Jeyes' Fluid m similar bottles and labels to the company's. After a conference .with the solicitors m the case, Moar virtually agreed to give up all the labels he had. Sir John Findlay:; That shows he acted m good faith, and when the matter comes before another tribunal we shall have something to say about it. Continuing, Mr. O'Regan said that since that time Moar had continued to use the trade mark, and sell bottles of fluids purporting to be Jeyes 1 ; whereas as a matter of fact it was entirely different. For this reason Nottingham refused to ratify the settlement, and owing to the delay which occurred m bringing on the Civil action, and as he desired to bring this daring imposture to an end. he laid the present criminal charge. Arthur Charles Nottingham, giving evidence, bbre out counsel's Opening remarks. ■■■I'u' In February last witness said he commenced civil proceedings against Moar, claiming damages for

INFRINGEMENTS OF HIS RIGHTS. Subsequently Moar surrendered about 15,000 labels and agreed to show his books. At - Moar's house a child's exercise book was handed' witness, containing a few entries. This was the only book shown. Moar verbally promised to cease using the Jeyes' trade mark, and agreed to hand over any stuff he had bottled. He handed over two dozen bottles, also the process block for printing the trade mark, arid • agreed to discontinue selling Jeyes' fluid, or rather the article he called Jeyes' fluid. That promise had not been kept. Moar had continued to sell Jeyes' Fluid. Sir John Findlay: And will continue to sell it, and is doing so to this day. Does my learned friend seriously suggest that if a person becomes legally possessed of Jeyes' Fluid he cannot sell it? , Mr. O'Regan: I will admit that it is no offence to sell Jeyes'. Continuing, Nottingham said the civil proceedings had not come on, and the reasons why he had -instituted the present criminal proceedings was because he had* to protect his business. Giving evidence as to how his business was being endangered by Moar, complainant said he had made no fewer than eleven trips from Christ-

church to Wellington, and had procured samples of Moar'a fluid. These samples had been analysed. During the last year sales of GENUINE JEYE'S FLUID had fallen off £4000. Sir John Findlay: You are proceeding on the assumption that no person can get bulk quantities of Jeyes' except through you? — Yes. Do . you know that Kempthorne, Prosser and Co. and other large wholesale firms have sold large quantities of Jeyes', m five-gallon drums to Moar?— 'They had no right to sell'it to him. Have you not heard on good authority that Jeyes' Fluid is being imported into this country by persons other than yourself? — Jeyes will not deal with anyone but me. How do you- know that people are not buying it from Jeyes m London, and shipping it to New Zealand firms?. — I have no proof of it. I can give you documentary proof. Would you be surprised to know that a firm m Auckland has invited orders from Mr. Moar for five 42 -gallon cask 3of Jeyes' Fluid? — I do not believe it. , Well, I am not going to mention names, but I alvise you to make enquiries before this case gets to the Supreme Court. Is there any objection to Moar selling genuine Jefyes' Fluid?— No. If Moar bought WHAT PURPORTED TO BE JEYES' from these large firms, you are not m a position to say whether it was Jeyes' Fluid or not? — No. Do you know that Moar bought this, business; it. is a small establishment

conducted by himself m one room, although its name is pretentious, from another person, f ancl took over the stocks of flul'd, labels, etc.? — Yes.

Is it not a fact that Ml 1 . Skerrett, who was representing you at the time told you he was satisfied of Moar'3 bona fides m the matter, and came to a Settlement of the matted on ' these lihfis, which settlement you refused to ratify? — That was arranged between Mr. Skerrett and my clerk ; I =desired the case to come to court.

Do you suggest that the £4000 decrease m your sales is due to Surreptitious manufacture by ' Moar? — He does not manufacture it.

Well, who does?— l cannot tell you,

Did you not say 'in the presence of Moar, Mr. Skerrett and myself, that some persons were either manufacturing or importing the stuff, and you were taking action against Moar (a small man) to try and stop and doter these big men? — No.

Sir John Findlay got from witness that tho five-gallon drums of Jeyes 1 Fluid, supplied through him, all bore a seal stamped with a Tising sun, Counsel produced entirely different seals, stating that they were off drums that Moar ' had purchased m large quantities. ' .

Professor TV H. Easterfleld, of-Vic-torian College, and Hanley John Hewitt, manufacturing chemist, of Christchurch, had analysed and compared genuine samples of Jeyes 1 Fluid, with samples, allegedly put on the market by Moar. The genuine article showed uniformity under chemical treatment,

while the other fluid varied and SHOWED MARKED DIFFERENCES. Huber M. Williams, chief clerk for A. C. Nottingham, described a visit he paid to Moar*s factory on January 23 last. He asked Moar if he was bottling Jeyes' Fluid. Moar replied m the affirmative, but said that supplies were difficult to obtain. Outside the place witness saw a number of barrels which appeared to have contained a tarry substance. Although Moar spoke of the difficulty of obtaining supplies he did not give witness an order for 4uid. Witness found that Moar's stuff was being sold by many Wellington shops. To Sir John Findlay witness said he was aware that Moar had been supplied with Jeyes' Fluid by Kempthbrne, Prosser's and Sharland's, but it did not occur to. 'him to have such samples analysed. Detective- Sergeant Andrews said that on September 8 he executed a search warrant against Moar, and a warrant to apprehend. Moar replied, "When I was using the 'Nurse' trademark a settlement was arranged, and all those labels were destroyed, and I have not used any since. The present labels have the words 'Jeyes' Fluid,' and I am entitled to use the words as they cannot be registered." Witness took possession' of about 100 dozen bottles containing Jeyes' Fluid, or what purported to be . that liquid. There were 130 "Nur.se" labels, and about 4000 others. Moar was arrested and brought to the police station. Sir John Findlay: Did Moar tell you that he had discovered these "Nurse" labels since the settlement, but had used none of them? — Yes. I This closed the case for the prosecution. Sir John Findlay said it had come as a great surprise to find that his [Client had been arrested, without any notification to himself or Mr. . Skerretti , He had not been able to obtam samples of the fluid for independant analysis, but. all the same, as the onus lay on defendant to prove that he did not act with intent to deceive, and he was not ready to go on, the case should go forward. But it was a hopeless case to put before a jury. His Worship: There certainly appears to bo A WEAK PRIMA FAGIE CASE V but it would be improper to discuss it on those grounds until defendant has ..satisfied the onus. Sir John Findlay: It is a very petulant exhibition for the criminal law to be used m this fashion. His Worship: Yes. I think he should not have been arrested, but meTely brought before the court on summons. Moar pleaded not guilty, and was remanded to the Supreme Court for trial, bail being granted.