SUPREME COURT.

Otago Daily Times, Issue 7929, 21 July 1887, Page 4

SUPREME COURT.

CIVIL SITTINGS. Wiciinksdav, July 20.

(Before his Honor Mr Justice Williams.)

M'LliOll lIKOTUKKS (l.IMI'l'Ull) v. WILLIAM ll'LKOI).

, An action for an injunction to restrain the defendant from using a certain trade mark. Mr Haggitt appeared for the plaintill' comI pany,and the defendant appeared ill person, not being represented by counsel. This was au action for mi injunction brought "J™l Urns. (Limited) against the defendant, William Al'Leod, to restrain tin; defendant trom imitating a trade mark, of whicii the company was the registered transferee-.**, heart with an arrow going through it, and having the letters "T" aud "M" 0 u its left and right side respectively, together with the words "Prize medal ' surmounted with the words " M'Leod Bros. Jt was alleged that prior to the 23rd of August 1886 the defendant had carried on his business as a soap manufacturer under the style of "William M'Leod"; thnt on the 23rd or August a notice appeared iv the (Jingo Daily Times announcing that Allan M'Leod and William M'Leod, jun., had on the previous day entered into partnership ; l.S^, S," ,1p,,;',""ul'ict'"''-'1's '""•*--"' tl»« stylo of "M'Leod 8r05.," and that for the present the business would be carried on jointly with William M'Leod, the only member of the old linn ot M'Leod Bros. The statement also alleged that Allan M'Leod and William M'Leod jun., were sons of the defendant, and young boys, and tliat after the advertisement had tm. pe.'iied the defendant had fraudulently and with intent to deceive the public and the plaintiff,,' customers branded or marked soap manufactured by him with a brand similar to the plaintilt's' registered brand, omitting oily the date and thu letters " TM," and had sold the soup so manufactured by him throughout New Zealand, his object iv so doing being to injure tho plaintiffs and to mislead purchasers ; that on tho 25th of October a letter had been written to the defendant calling his attention to what he was doing and requesting him to desist, or that otherwise proceedings would be taken, and to this tho defendant replied: " Fire away ;wo will defend."

The statement of defence admitted most of the allegations, but denied that the defendant's object was fraudulent, or with intent to deceive the public or the customers of the plaintill', and set up the right to use the brand the defendant had used.

Mr Haggitt stated tho facts aud cited the following cases in support of the application lor au injunction :—Seixo v. Provezende, L R Ch., Ap. 192 ; Witherspoon v. Ourrey, LR, H of L„ 508; Edeisten v. Edelsten, 1 De G, J and 5.,185* Cape v. Evans, 18 Eg,138; Braham v. Buttard, 1 H, and M.,4-17; Ford V.Foster L.K. 7, Ch. (ill; Singer Manufacturing Co. v' Wilson, L.R. 3, ap. cases, 376; Orr, Ewiug, and Co. v. Johnston and Co., L.R. 3, Ch. Div 434' Banks v. Gibson, 34, Beav., 5(36; Burgess v' Burgess 3 De G, M. and G., 596; and Clayton v. Day, 7b L.T., 79.

Evidence was called in support of the allegations in the plaintiffs' claim.

Iho defendant did not call evidence, but contended that he had a right to use the trade mark, that it had not been transferred to the company, and that nothing had been done by him that would mislead the public. His Honor said tho case seemed to him to present merely a question of law. on the construction of the documents before the court Before the deed of September 1882 the defendant and his brother John were partners under the name of " M'Leod 8r05.," and Allan was bought out. The trade mark originally belonged to the defendant aud his brother Allan, but i'om^ i J m' s tlade mark' alld iv the deed of 1883 the defendant made over the property and goodwill, including the trade mark, to his brother Johu.and if John bad broken the promises contained in the deed, the remedy was against him personally. Shortly after the last-mentioned deed had been executed, John made over the' property to the company. It seemed that tho defendant had misconceived his position, for even if one could go behind the documents-anil that could not be done—from what had been admitted and from what his Honor knew had taken place in bankruptcy there could bo no question as to the right to the trade mark having passed from the defendant. His Honor then granted an injunction in the following _ terms:—« That the defendant be restrained from using the plaintiffs' trade mark or any mark m imitation thereof upon any soap manufactured by him so as to represent that the said soap is prize medal soap the manufacture of the plaintiffs, and from using the brand or mark complained of on any soap manufactured by him, and from selling or offering for sale or procuring to bo sold any soap not being ot the plaintiffs' manufacture, having the plaintiffs trade mark or auy mark in imitation thereof stamped or impressed thereon, and that the defendant do deliver up to be cancelled all dies or stamps for stamping or impressing the abovementioned brand or mark. That the defendant be restrained from doing any act or thing to induce the belief that soap manufactured by him prior him is soap manufactured by the plaintiffs, and that the defendant pay the costs of this suit."

His Honor granted costs ou the lowest scale, disbursements witnesses' expenses, and two guineas for affidavits.

The court was then adjourned.