LEGAL ARGUMENT IN “ R.N.F.” CASE.

Star (Christchurch), Issue 19239, 28 November 1930, Page 7

LEGAL ARGUMENT IN “ R.N.F.” CASE.

COUNSEL SUM UP FOUR DAYS OF EVIDENCE. After the Supreme Court had heard evidence for four days, counsel in the plough share trade mark case addressed Mr Justice Adams this morning. Ransome, Sims and Jeffreys, .Ltd., of Ipswich, are seeking an injunction against P. and D. Duncan and Co., Ltd., of Christchurch, for an alleged infringement of the trade mark “R.N.F.” on plough shares. The plaintiff seeks to prevent the defendant from using the mark, and claims that all ploughs and shares bearing the mark in the defendant’s possession be delivered up to plaintiff, and such other relief as the Court might think fit, as well as the costs of the action. Mr Peacock, of Wellington, appeared for the plaintiff, and Mr Upham, with him Mr White, for* the defendant. Mr Upham, summing up the case for the defence, said that the evidence proved that the defendant company started making ploughs in Christchurch in 1868, and Reid and Gray commenced in Oamaru. In 1882 Booth Macdonald and Co. s'tarted making ploughs in Christchurch, and these were the only three companies to make ploughs in New Zealand. There were three ploughs imported, the Hornsby plough, the Gray (Addingston, Scotland) plough, and the Ransome plough. All three New Zealand firms adopted the Reid and Gray style of'plough. One of, Reid and Gray’s ploughs was sent home to Ransome’s, and that firm copied the Reid and Gray plough for use in the colonies, calling it the S.M.E. plough. That plough had an R. head, aird took an R.N.F. share. The R.N.F. socket on the share fitted the R.N.F. head, but differed from the other -plough shares. The head of the S. plough was its only difference from the other ploughs. One manufacturer, Mr Gray, said that he wished the plough heads were standardised, and so save differences in the shares. Mr Gray had sacrificed his own R. and G. head, and pushed the manufacture of the plough with an R.N.F. head. The idea was that all ploughs should have a standard head, the R.N.F. head. That would do away with a lot of confusion for the farmer, who would only have to indicate the size, width and weight when ordering shares. Such a reform would do away with any such question as the present one. It would necessarily take a long time to effect such a reform. When it was effected, a farmer could just order as many shares as he liked of the R.N.F. type. As it was, he had to specify the make as well. Started in 1868. The defendant company, counsel continued, started making ploughs in 1868, at which time they did not contemplate making shares, and there were no makers producing in New Zealand shares of the chilled cast iron type. Reid and Gray started making the shares in 1879, and P. and D. Duncan started in 1883. It would have been quite useless for either firm to make ploughs without shares f unless they made them with a head that would take some well-known shares. When P. and D. Duncan issued a catalogue in 1882, they specified that their ploughs were made with a C Hornsby head as those shares were readily procurable in the colony. It was also stated in 1882 that the ploughs could be made with R.N.F. heads if customers so desired. Either type of head was available. When Reid and Gray started Mr Gray adopted the heads to take the shares made by his brother, Mr Gray, of Addingston, Scotland. All ploughs in New Zealand were made with one of the three standard pattern heads, the C Hornsby, the R.N.F., or the Reid and Gray. The firms would provide customers with ploughs fitted with either of the three types of head. In 1868 these makers were committed to making ploughs with one or other of the three standard pattern heads. They had to keep on with them, as their old customers wanted the old shares. “That would be a real inconvenience,” said his Honor, “but if there was an infringement of trade mark it could not be excused on that account.” What A Catalogue Said. The plaintiff company, counsel went on, had wonderful success at a show at Newcastle, and after that used the letters R.N.F., R.N.E., etc., the “Newcastle Series,” to designate their ploughs. One catalogue issued said that “ Ransome and Sims have a large number of patterns of ploughs. . . . the patterns are distinguished by letters and numbers on the breast, the frame, the head, and the share.” The patent described was taken out by the original Mr Ransome in 1803. That was the chilled cast iron share. That share had a diamond hard cutting edge, and the rest softer, so that the softer part wore away, keeping always exposed and efficient the hard, sharp cutting edge. “ I would emphasise the point that a share had to be marked for the head it fitted,” said counsel. “A man would say, ‘My plough has an R.N.F. head, a Scotch head, or a Hornsby head.’ That is how he would describe his implement. In a later catalogue the plaintiff company issued of 160 combinations of letters which included R.N.F, The head could only be referred to as governing the share. The two had to correspond. Mr Upham pointed out that there were only three distinct types of head in New Zealand. They needed special shares. In England there were something like 160. Counsel held that previous cases had established that initial letters were in their very nature nondistinctive. The evidence was that all implement manufacturers needed pattern marks for their goods. There was nothing to show that the letters R.N.F. was other than a pattern mark; plaintiff’s real trade mark was “Ransome’s Patent,” which was later surrounded with a closed semi-circle. The Newcastle series had been more or less merged in the many different types of plough made by the plaintiff company. The head had to be designated by the same combination of letters as the share. They had to be marked in the same manner. The plaintiff company were not in a position to produce evidence of what happened in the very early times, except a number of catalogues. Those catalogues were conclusive that the plaintiff company regarded the letters R.N.F. not as trade marks but as pattern marks. So far from the defendant company doing the plaintiff company any harm by using the R.N.F. head, it was doing the plaintiff company the good of creating customers for the plaintiff company’s standard R.N.F. shares. Question of Right. “The plaintiff will say that they were entitled to that advantage because you chose to do it,” said his Honor, “but they can maintain that you had no right to use their registered letters.” “The test is whether they could have prevented us from doing it in the first place,” replied Mr Upham. The evidence, Mr Upham continued, pointed out that the patent marks on the early shares sent out by Ransomes was “Ransome’s patent.” Mr George Booth, of Booth, Macdonald, said that his firm, when it made ploughs, regard*

ed 'R.N.F. as a pattern mark and therefore open to any other firm for use . as a pattern mark. Mr Gray had said that his firm proceeded along similar lines. Therefore, all three makers of implements in New Zealand regarded “R.N.F.” as a pattern mark. Plaintiff company, said Mr Upham, had adopted the letter combinations as pattern marks, and it was only due to their prominence in England that they were distinctive. Why they registered the mark and how they were able to, was extraordinary. Had any honest application been made, the plaintiff’s marks could have been expunged from the registers, up to 1905 in England, and 19H in ew Zealand. (Proceeding.)