Flupplem ent.]
May 24J1911]
THE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). 293
Vol. XXVIII.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [No. 13.
Jewsbury and Brown v. An/drew and Atkinson. and OrmerodBros.
IN THE COURT OF OHANCBRY OF THE COUNTY PALATINE OF LANOASTER.
MANCHESTER DISTRICT.
Before VICE-CHANCELLOR LEIGH CLARE.
November 9th and December 5th, 1910.
JEWSBURY AND BROWN
u.
ANDREW AND ATKINSON AND
ORMEROD BROS.
Passing off and infringement of Trade Mark.-Alleged similarity 01get-up.Pr.obability of deception not established.-Action dismissed.
J. and B. had carried on business for many years as aerated and mineral
10 water manufacturers, and were the reqistered proprietors of a Trade Mark
(No. 197,292) registered for aerated waters in Class 44. They had sold a
certain ql,tantity 0/ ginger beer manufactured by them and known as-
" Orystal Brewed Ginger Beer" in bottles having affixed to the body thereof a
label of oblong shape printed in red and green bearing their Trade Mark in
15 the centre with the words" Orystal Brewed" above and "Ginger Beer" below
the same, together with their name and address in a band around the label,
A. and A. subsequently sold" Crystal Brewed Ginger Beer" in bottles bearing
a label which the Plaintiffs considered to be a colourable imitation of their label
and an infringement of their Trade Mark. An action having been brought by
20 J. and B. against A. and A., and the printers of the label in question, it was
held that there had been no infringement by the Defendants of the Plaintiffs'
Trade Mark, and that the Defendants' labels were not calculated to deceive.
The action was dismissed.
Prior to the commencement of the action A. and A.'s solicitors offered by
25 letter-(a) to discontinue the use of the label in question, to give up all unused
labels, and to undertake not to send any more bottles out with such label~
2
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294 THE ILLUSTRATED OFFIOIAL JOURNAL (PATENTS). [May 24,1911
REPORTS OF PATENT, DESIGN, AND TRADE YA.Jl,K CASESJ
Jewsbury and Brown v. Andrew and Atkinson and Ormerod Bros.
attached; (b) to make a statutory declaration as to the number of the labels
printed and the names of the printers.
Held, that in view of such offer the action was unnecessary, and the same
was accordingly dismissed with costs.
Jewsbury and Brown, the Plaintiffs in the action, were aerated mineral 5
water manufacturers carrying on business at Ardwick Green, Manchester, and
were in particular the manufacturers of a certain quality of ginger beer known
as Crystal Brewed Ginger Beer. They were the registered proprietors of a
Trade Mark (No. 197,292) registered for aerated waters in Class 44, a
representation of which is subjoined.
10
4
The essential particulars of the Trade Mark were stated to be the combination
of devices and the signature" Jewsbury & Brown," and the Applicants disclaimed any right to the exclusive use of the added matter except in so far as .
it consisted of their own name and address.
.
It was the practice of Jewsbury and Brown to distinguish the Crystal Brewed 15
Ginger Beer manufactured and sold by them by affixing on the body of the
bottle a label of oblong shape, printed in red and green, and bearing their Trade
Mark with the addition of the words" Crystal Brewed Ginger Beer." .They
alleged that such labels and the general appearance and get-up of their goods
were well known and recognised as indicating goods of their manufacture 20
and no other.
Supplement. ]
May 24,1911]
_ ..
THE ILLUSTRATED OFFIOIAL JOURNAL (PATENTS). 295
REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES.
-------------Jewsb1ur!J and Brown v. Andreu: and Atkinson and Ormerod Bros.
~--
In November 1909 Jewsbury and Brown discovered that Andrew and
Atkinson had begun to put up for sale and sell ginger beer in bottles bearing
labels which Jeuisburu and Brown alleged to be so similar to their own as to
infringe their rights in the said Trade Mark and to be calculated to deceive.
5 Andreu: and Atkinson were aerated and mineral water manufacturers of
Hyde, in the County of Chester, and the discovery of the sale of their ginger
beer in bottles with labels alleg-ed to be similar to those of Jewsbury and
Brown was made through one of their bottles being included by mistake among
bottles returned to Jewsbury and Brown by their customers.
10 The following is a representation in black and white of Jewsbury and
Brown's label. In use the ground of the label (here shown in black) was
green in colour and the letterpress was for the most part in red, with the
exception of the triangular figure in the centre containing the letters J & B
where the colouring was reversed.
15
On page ~~6 is a representation in black and white of the label of Andrew
and Atkins~.-',:;ln use the ground of this label was also green in colour while
the lettering- '\V3&::principally in red, save that their name and address were
printed in white lettering upon a red ground. This label was printed by
Ormerod Bros. for Andrew and Atkinson.
20
Certain correspondence passed between the parties before this action was
commenced, and in a letter, dated the 18th of November 1909, to Jewsbury and
Brown's solicitors, Andrew and Atkinson, through their solicitors, offered (a)
to discontinue the use of the label complained of, to give up all the unused
labels in their possession, to undertake not to send any more bottles out with
.
.
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Supplement. ]
296 THE ILLUSTRATED OFFIOIAL JOURNAL (PATENTS).
[May 24,1911
:REPORTS 01' PATENT, DESIGN, AND TRADE lU.KK CASEI.
Jewsbury and Brown v. Andrew and Atkinson and Ormerod Bros.
such labels attached, and to remove forthwith the labels from all bottles in stock
and to be collected ; (b) to make a statutory declaration as to the number of
labels printed, giving the names of the printers and also showing as near as
possible to whom the bottles were sold or delivered and the quantity of
labels on bottles in stock. Similarly, on the 24th- of November, in a letter of
that date written on behalf of Ormerod Bros. by their solicitors ttl Jewsbury
and Brown's solicitors, Ormerod Bros. offered to undertake not to print any
more of the labels complained of, and to destroy the impression from which the
labels were printed,
Jewsbury and Brown refused the above offers and on the 1st of December
1909 commenced an action against Andrew and Atkinson and Ormerod Bros.
The Plaintiffs by their Statement of Claim, after stating in the first three
paragraphs the facts as to the ownership of the Trade Mark and as to the
get-up of the bottles containing their Crystal Brewed ginger beer, stated as
follows :-"(4) The Defendants, Andrew and Atkinson, have applied or caused
'" to be applied to bottles containing ginger beer (such ginger beer not being of
,~- the' Plaintiffstmanufacture) labels bearing the Plaintiffs' said Trade Mark, or
U colourable imitations of such mark, in infringement of the Plaintiffs' rights
'~-ln the -said mark.
The Plaintiffs will rely hereunder upon the specimens
" referred "to in paragraph 6 hereof. (5) The Defendants, Andrew and. Atkin," son, have applied, or caused to be applied, to bottles containing ginger beer
:" (such ginger beer not being of the Plaintiffs' manufacture) labels of a shape
""'and colour, or combination of colours, only colourably differing from those
" used by the Plaintiffs, and. have imitated the appearance and get-up aforesaid
"of the Plaintiffs' bottles by the arrangement of such labels with the intent to
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Supplement.)
Mfty24,1911]
THE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). 297
:REPORTS OJ' PATENT, DESIGN, AND TRADE HA.:RK CA.SES.
Jewsbury and Brown v, Andrew and Atkinson and Ormerod ·Bros.
"-induce the public to believe that the Defendants', Andrew and Atkinson's,
" goods were goods of the Plaintiffs' manufacture and to pass the same off as,
""and for the Plaintiffs' goods. (6) In particular the Defendants, Andrew and
" Atkinson, for some time prior to the issue of the writ herein have sold and/or
5 "supplied to various persons in or about Hyde in the county of Chester and
" elsewhere, bottles containing ginger beer (not of the Plaintiffs' manufacture) ,
"to which they had affixed or caused to be affixed labels similar to the labels
"affixed by the Plaintiffs to bottles containing ginger beer with the intent of
" imitating the appearance and get-up of the Plaintiffs' goods and passing off
10 " the same as and for the Plaintiffs' goods." The Plaintiffs referred to certain
bottles supplied to persons named. "(7) The labels affixed to the said bottles
" containing ginger beer sold and/or supplied by the Defendants, Andrew and
" Atkinson, as aforesaid, were wrongfully printed by the Defendants, Ormerod
"Bros., acting in collusion with the Defendants Andrew and Atkinson, in
15 "imitation of the Plaintiffs' said Trade Mark, and also for the purpose of
" enabling the Defendants, Andrew and Atkinson, to affix the same to their
"bottles and thereby induce the public to believe that the Defendants', Andrew
" and Atkinson's, goods were goods of the Plaintiffs' manufacture and to pass
" off the same as and for the Plaintiffs' goods. (8) The Defendants threaten
20 "and intend, unless restrained by injunction, to continue the acts herein"before complained of and the Plaintiffs will accordingly suffer further
"damage. The Plaintiffs are unable at this stage to particularise their damages."
The Plaintiffs claimed :-" 1. An injunction to restrain the Defendants, their
" servants, agents, and workpeople from selling, supplying, or exposing for sale
25 " or procnring to be sold Crystal Brewed ginger beer or other mineral and/or
"aerated water in bottles having affixed thereto any labels so contrived or
" expressed as, by colourable imitation or otherwise, to represent the Trade Mark
"of the Plaintiffs Numbered 197,292 registered in Class 44, and generally
"from infringing the rights of the Plaintiffs in the said Trade Mark, and by
30 " colour or shape of labels and/or general arrangement thereof or 'get up' of
" the goods from passing off as and for ginger beer or mineral and/or aerated
"water sold or supplied by the Plaintiffs any mineral or aerated water not
" sold or supplied by them." The Plaintiffs also claimed damages or at their
option an account of profits and delivery up or destruction of all labels, dies
35 .and blocks having printed, impressed, embossed, cut or engraved thereon any
imitation of the Trade Mark, and costs."
The Statement of Defence of the Defendants Andrew and Atkinson was as
follows :-" (1) These Defendants admit that the Plaintiffs are aerated and mineral
".water manufacturers. Save as aforesaid these Defendants deny each and all
40 " of the allegations contained in paragraphs 1, 2 and 3 of the Statement of
" Claim as though the same were set out herein and denied seriatim. (2) These
" Defendants have not applied or caused to be applied to bottles containing
" ginger beer (such ginger beer not being of the Plaintiffs' manufacture) labels
" bearing the Plaintiffs' Trade Mark or colourable imitation of such Trade Mark,
45 "and these Defendants deny each and all of the allegations contained in para- .
" graph 4 of the Statement of Claim. (3) These Defendants have not applied
" or caused to be applied to bottles containing ginger beer (such ginger beer not
" being of the Plaintiffs' manufacture) any label or labels ofa shape, colour or
"combination of colours only colourably differing from those used by the
50 "Plaintiffs, nor have these Defendants imitated the appearance or get
"up of the Plaintiffs' bottles with the intent alleged in paragraphs 5
" and 6 of the Statement of Claim OF at all, and these Defendants deny each
"and all of the allegations contained in paragraphs 5, 6, 7 and 8 of the
Suppiement.)
298 'rHE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). [May 24,1911
REPORTS OF PATENT, DESIGN, AND TRADE llARK CA.SES.
Jewsbury and Brown v. Andrew and Atkinson and Ormerod Bros.
"Statement of Olaim as though the same were set out herein and denied
" seriatim."
The Statement of Defence of the Defendants Ormerod Bros. was as follows :-, (1) Save that the Plaintiffs affix to bottles of a distinctive make or pattern
" and containing aerated or mineral waters manufactured by them an oblong
"·label prominently displaying their registered Trade .Mark and their firm's
" name and address with additional printed matter, and that the Plaintiffs also
" use a white oblong label with red lettering thereonwhich is pasted across the
" the stopper and that the former oblong label containing the particulars afore"tlaid is well known as indicating the Plaintiffs' goods, these Defendants do
" not admit any of the allegations contained in paragraphs 2 and 3 of the
" Statement of Claim. They say that, apart from the said firm name and Trade
" Mark, the shape and elements or constituents of the Plaintiffs' said label are
" common and in no way distinctive." [The disclaimer on the registration of
the Plaintiffs' Trade Mark was referred to and set out.] "'rhese Defendants
"also say that the said oblong label first mentioned contains a statement so
" printed and contrived as to represent and induce the belief that the whole of
"such label constitutes the Plaintiffs' registered Trade Mark; such repre" aentation is untrue to the knowledge of the Plaintiffs. (2) These Defendants
"have no knowledge of and they do not admit any of the allegations contained
" in paragraphs 5 and 6 of the Statement of Claim. (3)· Referring to paragraph
" 7 of the Statement of Claim, these Defendants say as follows :-In or about
"the month of June 1909 these Defendants, who are colour printers and
"designers, received from the Defendants Andrew and Atkinson, a letter
" enclosing a label for bottles containing ginger beer similar to the first oblong
" label described in paragraph 2 hereof, but with erasures and alterations in
" ·black ink as suggestions for a new label after that style for the said Defend"ants. The letter contained instructions to these Defendants to forward as
" Boon as possible 20,000 ginger beer labels, red or green, something after the
" style of the labels enclosed, but without being an infringement of the same,
"and printed with matter as enclosed. These Defendants thereupon in all
" good faith designed and submitted to the Defendants Andrew and Atkinson
" the label complained of in this action, and, on the same being approved by
"them, printed and supplied to them 25,000 of such labels at a cost of
" 14l. 17s. 6d. These Defendants have not supplied or printed any more of
" the said labels. Save as aforesaid these Defendants deny all the allegations
"in paragraph 7 of the Statement of Claim. (4) These Defendants say
"that the said label designed by them is not an infringement of the
" Plaintiffs' registered Trade Mark.' Whilst it has a similarity in the style
" and wording which is common to the trade, it is plainly distinguished from
" the Plaintiffs' first-mentioned label and could not be used either in combina" tion with the second oblong label mentioned in paragraph 1 of the Statement
" of Claim, or without such oblong label, to pass off goods not of the Plaintiffs'
"manufacture as goods of the Plaintiffs' or as goods of any firm other than the
" Defendants Andrew and Atkinson. At the same time these Defendents being
" In no way interested in the use of the said label and being anxious to avoid litiga" tion, by letters of their solicitors dated the 17th and 24th days of November 1909
" 'and by their solicitors at an interview with the Plaintiffs' solicitors gave the Plaint" iffs before the commencement of this action full information as to the said order
"received by them for the said label, and of the delivery to their co-Defendants of
" the labels complained of, and offered to give an undertaking not to print any more
" of the said labels and to destroy the impression from which the same were
,. printed., Notwithstanding the said letters and offer the Plaintiffs have
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Supplemen'. J
May 24,1911] THE ILLUSrRArt'EllOFF1C1AL JOURNAL (PArrENTS). 299
DPORTS OJ' PATENT, ,DESIGN, AND TRADE MA.Jr.K CASEI.
Jewsb'ttry and Brown v. Andrew and Atkinson and Ormerod Bros.
5
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35
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" commenced this action against these Defendants for the purpose of pressing
" demands contained in a letter from the Plaintiffs' solicitors dated the 16th day
" of November 1909 to which these Defendants refer, and which demands are,
" as these Defendants submit, wholly unreasonable as against them. (5) These
"Defendants deny all the allegations contained in paragraph 8 of the Statement
" of Claim in so far as such allegations are made against them."
The action came on for trial before Vice-Chancellor LEIGH CLARE on the 9th of
November 1910.
Radford (instructed by A. and G. W. Fo.coi Manchester) appeared for the
Plaintiffs; Cunliffe (instructed by F. Knowles &: Son of Hyde) appeared for
the Defendants Andrew and Atkinson; and Maberly (instructed by Brierley
and Hudson of Rochdale) appeared for the Defendants Ormerod Bros.
Radford having stated the facts, a number of witnesses were called for the
Plaintiffs to testify to the similarity between the two labels, but only one or
two stated that they had been deceived by such similarity.
Cunliffe, for the Defendants Andreu: and Atkinson, objected to the evidence
of witnesses who merely spoke as to similarity and who had not been themselves deceived, on the ground that the question as to similarity was one for the
Court. In support of his contention he referred to Schweppes Ld. v, Gibbens
(22 R.P.C. 113 and 601) and Pauton &; Co. v. Snelling, Lampard &7 Co.
(17 R.P.C. 628; L.R. (1901) A.C. 308). His objection was upheld. After
reading the correspondence between the parties, Counsel contended that the
labels in question were so dissimilar in every respect that' the Plaintiffs' case
must fail both as to infringement and passing-off.
W. T. Andrew and Edmund Ormerod gave evidence to the effect that there
wasno intention to imitate the Trade Mark so as to pass off the Defendants'
goods as those of the Plaintiffs', and that in taking the Plaintiffs' label as a guide
for the production of a new label they were doing what was usual ill the trade,
and care was taken to vary the style or the new label so that the one could not
possibly be mistaken for the other.
LEIGH CLARE V.C.-As far as Trade Mark is concerned, I have to look at
it as if on the Defendants' label it was printed in black and white. If printed in
black and white, there cannot be any possibility of mistaking one for the other.
'I'herefore, it seems to me, that the only question I have got to determine in this
case is passing off. I am not going to dispose of this case to-day, because there
are two or three points which make it desirable that I should reserve what I
have to say, But I want to put this to you, Mr. Cunliffe ;-surely if these
people had been minded to produce an entirely independent label, nothing
would have been simpler than for them to have done one of two things. They
might have said-" We are going to bring out a Crystal Brewed Ginger Beer;
" we want our own label; we want a label which will be perfectly new. Here
" is our Trade Mark, and we should like it in red and green." Those were all
the instructions that were necessary, particularly to skilled printers. Then, if
they had not been minded to take that course, they might have taken this.
They might have sent the Plaintiffs' label, and have said-" We' want a label,
" something of this sort, but mind you do not copy it." What they did was
to send the Plaintiffs' label with the Plaintiffs' name and address struck
out and the Plaintiffs' Trade Mark covered over by the Defendants' Trade
Mark. The inference that I think the printers would fairly draw from the
letter to them of the 10th of June 1909 and that altered Trade Mark, is that
they were not to copy the things struck out, but they were to get as near as
they can to those things which were left. That is the present impression upon
my mind. Of course the effect of that may be displaced by the correspondence-
Svpplement.l
300 1.'H~ ILLUSTRATED OFFIOIAL JOURNAL (PATENTS). [May 24,1911
BBPORTS O:r PATENT, DESIGN, AND TRADE :lUJl,K CASES.
Jewsbury and Brown v, Andrew and Atkinson asul Ormerod Bros.
which you have read, but I am bound to say that that letter, and the contents of
it, to my mind appear to be very much against you. There have been cases
where a successful defendant has been deprived of costs on the ground that he
brought the action upon himself.
, Cunl~ffe.---I submit that it would be a hardship if the Defendants, who were 5
held to have done no wrong, were ordered to pay costs.
LEIGH OLARE V.O.-I think it is possible-I may go a little further, and say
that it is probable-that the Defendants meant not to infringe; but I think, using
the expression Mr. Radford put to a witness, that they meant to sail as near to
the wind as they could.
10
Ounliffe.-Does it not come to this, that, assuming that your Honour finds
that my clients have done nothing that you find they were not entitled to do,
you are going to punish them by making them pay a portion of the costs?
LEIGH CLARE V.G.-I am not going to make them pay any costs; I am going to
consider whether I shall deprive them of the whole or part of their costs.
15
The following cases were referred to in the course of the argument on the
question of costs :-Frederick King & 00. Ld. v, Gillard &7 00. Ld. (22 R.P.C.
327); Borthwick v. "Evening Post" (L.R. 37 C.D. (49); Schweppes v.
Gibbens (22 R.P.C. 113 and 601).
LEIGH CLARE V.G.-There is no evidence against your clients,Mr. Maberly, 20
that they persisted in asserting a right to continue this?
Maberly.-No. They offered an undertaking in a letter of the 24th of
November 1909 which the Plaintiffs refused on the 26th of November.
Maberly then read the correspondence that had passed between his clients
and the Plaintiffs.
25
Radford objected to the correspondence being read, as all the letters which
followed the letter from Messrs. Brierley and Hudson of the 17th of November
down to the one of the 26th of November were without prejudice.
LEIGH OLARE V.0.-Very often a correspondence follows upon a statement :" We are prepared to discuss the matter with you without prejudice." Does that 30
close all the letters afterwards?
Radford.-That, I submit, would be the effect here,
LEIGH CLARE V.O.-I do not know what would be the effect. Let me see
the portion of any letter which you say shuts out the letter of the 24th of
November.
35
. Radford.-These are the words :-" We propose to call and see you to discuss
" the matter, but before doing so our clients would prefer to communicate with
" Messrs. Andrew and Atkinson upon your letter. We shall be glad, therefore,
"jf you can fix an appointment for us to see you at your office on Tuesday
" next say at 11 or ] 1.30. This letter is without prejudice."
40
LEIGH CLARE V.C.-I do not think that prevents Mr. Maberly from reading
the subsequent letters. I am prepared to dismiss the action on the ground that
there is no infringement and no passing off. The question is, Mr. Radford,
whether they made an offer which you ought to have accepted before the trial.
So far as the Defendants Ormerod Bros. are concerned I do not see why I 45
should not allow them their costs.
Radford.-As far as the Defendants Andrew asid Atkinson are concerned,
I submit that they are clearly out of Court. By the letter of the 10th of June 1909
and the instructions which they gave to the printers they clearly intended, as
far as they could, to adopt and get the benefit of the reputation of Jewsbury and 50
Brown.
LEIGH CLARE V.O.- What do you say as to the letter of the 18th of November
where Messrs. Knowles . th Son made you an offer?
Supplement. ]
May 24,1911]
THE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). 301
UPOB,TS OJ' PATENT, DESIGN, AND TRADE M.A.ltK CAlES.
Jewsbury and Brown v. Andrew and Atkinson and Ormerod Bros.
5
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Radford.-I submit that in the correspondence there is not such a complete
offer that we could have accepted:
LEIGH CLARE V.G.-My sympathy is with you; my judgment is against you.
Radford.-That of course is on the question of infringement.
LEIG H CLARE V.O.- Yes. On the question of costs I am going to consider ~he
position so far as the Defendants Andrew and Atkinson are concerned. WIth
regard to the Defendants Ormerod Bros. I dismiss the action as against them
with costs.
Judgment was reserved and delivered on the 5th of December 1910.
LEIGH CLARE V.C.-In this case I have come to the conclusion that the
Plaintiffs' case must fail on the merits, so far as either injunction or
damages are concerned. The Plaintiffs' mark, which is a registered mark,
consists of an oval-a sort of garter-with their name round it and another
registered trade mark in the centre. The mark which is said to be an
infringement is what one may call a rectangular mark. It is an oval shaped
garter with corners to it, not quite right-angle corners; it is not a clean curve
all the way round. It is not very unlike the oval which the Plaintiffs have.
The Defendants put round their oval their own name quite plainly, and in the
middle they have a mark which is certainly not the Plaintiffs' Trade Mark. I
have come to the conclusion that nobody, seeing the bottles of ginger beer, soda
water, and so on, close to, could fail to see that the mark was not Jewsbury and
Brown's mark. The actual main shape of the label is a very common one ;
there are dozens and dozens of them; and I do not think that anybody would
be deceived by seeing that the bottle bore a label of that shape. If they saw it
sufficiently to see what was on the label they could not by any possibility be
deceived. One has to consider what the practice is. Of course Jewsbury and
Brown sell to private customers large quantities of their ginger beer and
other mineral waters. I will undertake to say that anybody who gets the
Defendants' in a private house would see at once that, if he expected to get
Jewsbury and Brown's, and not the Defendants', he had not got what he had
expected to get. On the other hand, if he were in a restaurant and the waiter
held the bottle in his hand and poured it out, I do not think the customer could
possibly see enough of it to be deceived, even if there were any possibility of
deception; but if he did see enough of it, he would see at once that it was
not Jewsbury and Brown's and he would not be deceived. Therefore it is
quite clear that the Plaintiffs' case must fail.
I only reserved this case for further consideration because I did not think it
right to dispose of it without first of all considering, what perhaps is the most
important part of the whole case, namely, the question of costs. Prima facie
the Defendants would be entitled to their costs, having succeeded in the action,
but if it had not been for the correspondence, and for offers which were made in
the correspondence before action, I should have had very great difficulty in
giving the Defendants the costs of the action. Messrs. Jewsbury and Brown
are large and well-known manufacturers of mineral waters, and I suppose everybody who is a small manufacturer would like very much to have a little bit of
their goodwill and a little bit of their business. Without saying very much
about the conduct of the Defendants Andrew and Atkinson, which has not
impressed me in the first instance very favourably, I am bound to say this,
that when they were getting out a label they sent off Jewsbury and Brown's
label, altered to some extent, to a label printer; and they asked that printer1 am not giving the exact words of the letter, but in effect-to procure them
a label of that sort; but they said :-" Mind you take care that it· is not an
"infringement." What I think these Defendants did was, to tell the printer
Suppkment.]
302 THE ILLUS'rRATED OFFICIAL JOURNAL (PATENTS). [May 2(,1911
REPORTS OF PATENT, DESIGN, AND TRADE :MAJl,K CASES.
Jewsbury and Brown v, Andrew and Atkinson and Ormerod Bros.
that he was to be very careful about not infringing, but what they did mean to
do was to sail as near the wind as they possibly could. If the case had rested
there I should have thought that the conduct of the Defendants Andrew and
Atkinson, although they have been successful in the action would have justified
me in depriving them of the costs of the action: but they did make, I suppose 5
under advice, certain offers, before the action was commenced, with regard to
costs, and with regard to the label, and generally with regard to what they were
prepared to do. In short, they made offers which rendered the action, in my
opinion, quite unnecessary. Under the circumstances I dismiss the action, and,
10
I am sorry to say, I dismiss it with costs.
IN
TH"E HIGH COURT OF JUSTICE.-CHANCERY DIVISION.
Before
MR. JUSTICE PARKER.
February 9th and March 1st and 3rd, 1911.
IN
TH~ MATTER OF THE
I.D., FOR
No. 315,139.
BRADES
AND
ApPLICATION OF WILLIAM.
Htrxr
& SONS, THE
THE REGISTRATION OF TRADE MARKS
N.o. 315,138 15
Trade l'Jlark.-Old mark. - Lapse.e-Freeli Application toreqister.s-Opposition.
-Application refused.-Further Application on more complete evidence refused
by Registrar.-Res judicata.-Appeal.-Registrctr o'nly appearing on apJJeal.Registrar directed to proceed.-Gosts.
20
The predecessors in business of W. H. &; S. registered two Trade Marks in
187.6 as old marks, and after the first renewal the marks were allowed to lapse.
Application was made to have the marks re-registered as old marks, but this
Application. was opposed by two other firms, and was refused by the Registrar
un Jhe ground of there not being sufficient evidence of user as old marks. 25