PROTECTION OF TRADE MARKS.

Poverty Bay Herald, Volume VIII, Issue 1351, 20 June 1881, Page 2

PROTECTION OF TRADE MARKS.

The new At fo.' the registration of trade marks passed in the United States (says a late English paper) and which sets at rest the doubta previously entertained rq to the right of British subjects to one species of copyright, suggests some odd reflections as to the curious condition of our own law on the difficult subject of commercial badges or insignia. An absurdity, strongly commented oa at the time of the last legislation on trade marks in this country, was only a few days snce brought into strong relief. The Master of the Rolls is ex officio one of the Commissioners of trade marks, and, having granted registration as a ommissioner, is not unfrequently culled upon to decide as a judge on the validity of his own work or that done in his name. His position inevitable suggests comparasions with that, of Harpagon's coachman-cook in Moliere's celebrated comedy. Everybody recollects the famous scene in which the miser's man insists on donning his cook's cap while taking orders for dinner, and on removing it on his master's giving him directions concerning his carriage and horses. The distinction between the two functions of the Master of the Rolls is even more sharply dr asvij.i |*As a Commissioner he admits 'that registration which he may sui., sequently as judge decide to be invalid* In the case of " Read Brothers **. Rich-, nsdspifcj^nd Co," this supreme absurdity was avoided, for the master of the Rolls confirmed, as a judge, what he had done as a Commissioner ; but only to see his decision, for the present at least, reversed on appeal. Both plaintiff and defendants are exporters of bottled ales and stout to Australia and the colonies. The plaintiffs registered in December, 1876, their trade mark, the head of a bull-dog on a dark blae label, with the words, "Read Brothers, London, the Bull-dog Bottling," around it. The connectian of a bull-dog with beer is not very obvious, until it i& recollected that in the days when " Purl," was the beverage preferred by early workers for matutinal refreshment, there was a humbler mixture known as " dogs-nose," which, instead of being made of strong ale and rum, and served hot, consisted of ordinary porter with a dftib of

gin in it, and was taken cold, whence its appolation. Be this aa it may, It appears from the evidence brought forward on appeal that Mesara Read's blue bull-dog became well known and appreciated in the colonies, and thai their export was called "Dog^s. Head Beer." In October, 1879, the defendants registered their trade mark, the he;ul of a terrier on a red label, surrounded by the worda " Celebrated Terrier Bottling, Richardson and Co., London." Messrs Read holding this to bo an infringement of their trade mark, and an attempt to take advantage of the reputation acquired by. the original " Dog's Head Beer," applied to the Master of the Rolls for redress. Upon an interlocutory motion for an injunction the Piaster of the Rolls, on the 28th of January last, held that the labels themselves were not so alikeas to mislead ; that the evidence of fraudnlent intent on the part of the defendants was not such ai he could then act on, and that there \*ai no trustworthy evidence that anybody had been deceived. He therefore refused the injunction, the defendants undertaking to keep an account. On appeal the case came before Lord Justices Jame9, Brett, and Cotton, who, dealing with it as upon an interlocutory application, reversed the decision of the Master of the Rolls, and granted the injunction. How far an approach to any other person's trade mark may beheld to be "with intent to deceive," and near enough to deceive ordinary buyers, to the injury of the original proprietor's business must always be a vet/ delicate question. Without in the least offering opinion on a case not yet decided, it may be fairly said on the one side that a red terrier is unlike a blue bull-dog,' and on the other that the name " Dog's Head Beer " showed that it was the dog's head and not the colour ,of the label which made the difference ; and, moreover, that a terrier may be a butlterrier and look very like a bull-dog proper to uneducated eyes. It might fairly -be urged on the one hand that no tfif sonable being could confound the two trade marks ; and, on the other;" that people who drink large quantities of beer and other stimulants are not invariably in a condition to decide between blue and red or bull-dogs and terriers.