ARGUMENT HEARD IN PLOUGH DISPUTE

Star (Christchurch), Issue 19237, 26 November 1930, Page 14

ARGUMENT HEARD IN PLOUGH DISPUTE

ENGLISH ENGINEERS CLAIM INFRINGEMENT. The hearing of the case in which Ransome, Sims and Jeffries, Ltd., of Ipswich, England, engineers, proceeded against P. and D. Duncan, Ltd., of Christchurch, for infringement was continued before Mr Justice Adams in the Supreme Court this morning. Mr Peacock, of Wellington, appeared for the plaintiff company. Mr Upham, and with him Mr White, represented the defendants. The claim by the plaintiff was that the defendant infringed plaintiff’s trade mark by manufacturing and selling plough shares bearing the mark “R.N.E.”, and by advertising that it manufactured and sold “R.N.F.” heads and “R.N.F.” shares- for Jploughs. Plaintiff claimed an injunction to restrain the defendant from infringing the trade marks, and also an order for delivery up to the plaintiff of all ploughs or parts in the possession of the defendant, such further relief as was deemed fit, and costs of the action. George Thomas Booth, managing director of Booth, Macdonald and Co., Ltd., till 1927, said he had been connected with the company since its formation in the early ’eighties. Before the formation of the company the business was carried on by his father. First of all the firm were importers of agricultural machinery, but later on they went in for manufacturing. In 1876 witness became engaged in practical work such as the fitting-up of ploughs, and office routine. At that time witness’s father imported ploughs from the plaintiff company, mostly singlefurrows marked “R.N.D.’ , t> “R.N.E.”, and “R.N.F.”. Ransomes was the only plough he remembered at that time. “R.N.F.” ploughs were imported continuously by his firm. Booth, Macdonald and Co. found that the Ransome ploughs had a ready sale. The maker’s name was inscribed on various parts, and all were inscribed “Ransome’s Patent.” “Shares wear out rapidly,” said witness, “especially in those old days when the country was being broken up, and the trade was considerable. The ploughs Booth, Macdonald and Co. made were fitted with ‘R.N.F.’ shares. They were of good quality. Cross-examined, witness said that in his time Booth Macdonald and Co. did not purchase large quantities of shares from P. and D. Duncan, Ltd. The Defence. ‘‘lt is admitted that the plaintiff company are the proprietors of the trade mark ‘Ransome,’ ‘Ransome’s Patent,* and ‘R.N.F.’,” said Mr Upham, in opening the defence. “The real issue in question,” he said, “was that the defendants were alleged to have manufactured and sold plough shares marked ‘R.N.F.’ ” “I made that clear in the opening,” said Mr Peacock. “The mark ‘R.N.F.’ on shares manufactured and sold by the defendants is the issue which mainly concerns the Court.” Continuing, Mr Upham said that the plaintiff company made different ploughs and different shares for each type of country. The defendants claimed that the mark “R.N.F.” was originally merely descriptive. Such a mark might become distinctive of a particular maker. Where it became distinctive as early as 1889, it could be registered as an old mark. Once a registered trade mark had been in existence seven years, the trade mark became absolute, and could not be taken off the register. The defence had to show that the trade marks in question were improperly registered in England in 187 S, and in New Zealand in ISS9. In 1878, plaintiff company registered a series of trade marks in England. It was shown in an English law case that capital letters could not be registered at that time. Only one occasions when the letters were distinctive could they be registered now.' There was great difficulty in registering capital letters. The letters “R.N.F.” could only have been regstered as “old marks,” not trade marks. To register as old marks, it was necessary that the whole mark used by the owner should be registered. All that the plaintiff company were entitled to regiser in IS7S was the whole distinguishing mark that appeared on the goods. As it wah, the trade mark was split up into fourteen parts, and rergistered. Plaintiff could have registered the whole mark, but did not. Up to 1905 in England, and to 1911 in New Zealand, anyone could have applied to have the plaintiff company’s mark expunged rom the registr. The New Zealand Act, 1921-22, provided that the proprietor of a registered trade mark should not be entitled to restrain another person from using the mark in cases where such other person had used the mark continuously from a date prior to the registration of the plaintiff’s trade mark, or the user of the mark, whichever was the earlier. Another section prevented the trade mark proprietor from preventing a person using the trade mark in a bona fide manner when the mark was used purely in a descriptive manner referring to the character or quality of the goods. “If we have Infringed the plaintiff’s rights we cannot escape,” said Mr Upham, “but we hold that there has been no infringement. A New Zealand company who used a closed semi-circle surrounding their name were compelled by the plaintiff company to-give the semi-circle up. They pushed the jealousy of their trade marks to that extent. They also restrain any one from using any combination of the letters “R.N.F.” His Honor: According to that, a company could register the whole alphabet, and prevent any other firm from using any combination of letters. “That is so,” your Honor.” said Mr Upham, “That was a decision of the Court.” (Proceeding.)