THE TRADE MARK CASE.

Press, Volume LXVI, Issue 20096, 27 November 1930, Page 6

THE TRADE MARK CASE.

ACTION IN SUPREME

COURT.

THE DEFENCE OPENED, j i LENGTHY BVIDENCE HEARD. Evidence for the plaintift! company in the trade mark case which is being heard at the Supreme Court, was concluded yesterday morning, and counsel for the defence opened his address juet before the luncheon adjournment. The case commenced on Monday, and it is doubtful if the conclusion will be reached before the end of the week. The qut-Btion at issue concerns the use of u certain trade mark upon plough shares, a well-known Kugiish company backing a Christchureh firm, and alleging an infringement of its marks. The plaintiff is ltansome, Sims, and Jeu'eries, Ltd., of Ipswich, .fclugland, engineers, and tfco defendant is I'. and IX .Duncan, Ltd., of Christehureh. iiis Honour Mr Justice Adam.? is on the Bench, Air J. C. i'eucocfc, of Vvcllington, ia appearing for tfce plaintiff, anu Mr J. 11. Uplnim, with him Mr lii. W, White, for tlie deiendant. | iMaintiix claims that tuo defendant | company naa lnxringed piamtiu'tj traue ! uiauts Liy manuiaciunug and sening I snares tor piuugns wearing tlie mam ) "j.v.iS.K" ana uy advertising that it \ munuidcturea anu kous "H.iN.x." UoaUs ] tuid ••K.iN.i'." Buaius ior p.ougns. FiamtiU claims an injunction to resuain the aeienuaiit iroin miringnig the traue I marKs, aiso an oruer tor ueiivery up to ihe piaintitt on all piougna or parts j in tne possession of tuo ueLeuaaiit, such I luitner rclier as is deemed ftt, and the j costs of thu action. ! Opening up tlie Country. George rnonias iiooth> wno, until 1927, wao managing-director of .booth, Maodcwald ana uo., Ltu., said tnat ue uau been connecteu witn tlie company since its xoimation eariy in tne Vigiiuus. Uelora tne company was iormcu i!iu business was cameu on by iiis latnur. Originally tlie jn'm weru importers ot : agricultural macluneiy, and later they went ia ior inanuiaciurmg.

Witness's turn practical experience ol! ttio business wus m wueu he wuu eogayeu in geiierui worn such as titling up piouyns uxi'i oiricu routine. In tuo cariy ua;» !ns xatiicr imported p*ougus irom tUo piaintiU company wusuy singio-iurrow pioughs uuiiKed "iC.iN.U.," "K.in.K.," aiia Btinsomo's was the only piough which he remembered at that time. pujugna were imported continuously up to the last few yuais, und they obtuineu a ready sale. The maKer's name was marked on the various parts, ami shares luting tho "K.K.i"." piougn were marKud " Kaasome 's Patent." Previous to 1880 he handled the shares which were then marlted ill the maimer described. No chilled east were then made iu .Now Zeaiand as far as he was aware. Shares wore out rapidly, paitieuiarly in tnose days when tne country was b<_mg broken up, and the trade was considerable, said witness. The "S.M.E." plough took "R.N.iV shares; so did tho Oariyle plough, made by Booth, Macdonaid and (Jo. To Air Uphnin witness said that lie was not aware that his company bought large quantities of shares irom P. mill D. Duncan, Ltd. This concluded the case lor tho plaintiff. Mr Uphain !>aid that it was admitted that the plaintiff company was tho registered proprietor of the three marks. The caße would bo simplified if tho Jotter charge was eliminated. It was clear that tho charge regarding infringement of "Itansome's Patent" could drop out as it was concerned with the case. It would bring the case down to one oi infringement of the trade mark by the use of the letters "II.N.iV on snares manufactured and sold hv the defendant company. In opening, Mr Peacock, counsel for plaintitt", had said that different types of ploughs were needed for different countries, and were marked accordingly. The defence claimed that the letters "Jt.N.F." were clearly descriptive in their origin. Such a mark might, in course of time, become distinctive of the manufacture of a particular maker. Since 1905, in England, and 1912, in Iv T ew Zealand, when the Act of 1911 came into force, once a registered trade mark had been in evidence for soma 1 years the right to it became absolute. But at the same time it was necessary to show that in 1878, in England, the trade markß were improperly regietared. The same applied to the registrations in New Zealand in 1889. An appeal case showed that capital lotters could not be registered from 1875 to 1905, and after that they could, only with difficulty be registered, although they wero distinctive. That showed how jealously the Legislature regarded appropriation of the letters of the alphabet. Tho marks were registered in 1878, simply as old marks. ; It could not have been otherwise. To i register as an old mark it was necessary that the whole mark previously used by the owner should be registered. Marks Split Up.

The marks on the plaintiff's shares were "Bansojne's Patent," in a semicircle, and the letters "B.N.IV' It was submitted that up to the time when the company decided to register the marks in England in 1878, anyone in England would have considered Kansome's trade mark to be "Kansome's Patent" in a semi-circle. . All the company was entitled to register in 1878 was the whole distinguishing mark that had appeared on the goods. Then camo the extraordinary splitting up of the trade mark. Bight up to 1905 in England ahd 1911 in New Zealand anyone in the position of the defendant company could have gone to the Court and had those marks expunged from the register. After the passing of the two Acts the Legislature protected people in the position of the defendant company by providing that the proprietor of a registered trade mark should not be entitled to restrain another person from using the mark, in casos where the other person had used the mark continuously from a date prior to the registration of the plaintiff's mark. There was further protection, preventing the proprietor of a mark interfering with the bona fide use by another person of the mark when it was necessary to describe the goods. The use of the blank semi-circle, said Mr Upliam, had resulted in a New Zealand company some time ago being attacked by the plaintiff company and compelled to drop the mark. That showed the extraordinary lengths to which the plaintiff company could go in the protection of its trade marks. Sis Honour: Then you have only to se<; out • all the letters of the alphabet and you tlitis prevent anyone from having a mark. Mr Upliam: That is so. Mr Peacock: It must be a misprint. Previous Oases Quoted. Continuing, Mr Upham sais that in previous cases where the plaintiff company had suceeeded in actions for trade

mark infringement, the infringement had been "pure piracy." In tho present case the plaintiff company had never used "R.N.F." without "Ransome's Patent" in the semi-circle. Plaintiff witnesses admitted that they had never seen the letters "R.N.F." on a share without its being intended to lit an "R.N.F." head. They had, however, scon chilled cart iron shares bearing "Ranaome's Patent" in a semi-circle, without the "R.N.F.," and they understood that those shares did not fit an "R.N.F." head.

The original markings of the plaintiff company were inset, continued Mr Up- < ham. The defendant company's catalogues of 1883 were good evidence of what was intended at that time. The cast shares were listed as "P. and D.D." The firm gave its customers an opportunity to buy either local or imported shares, the customer to specify the type of head the share was to fit. Defendant company had regarded the mark "R.N.F." purely as a pattern mark and not as a trade mark. Owing to New Zealand manufacturers making ploughs with an "R.N.F." head, the plaintiff company wsb able to Sell thousands of dozens of shares in the Dominion. The three implement-makers in New Zealand made ploughs with a head according to an existing standard pattern. Evidence for Defence. James Keir, works manager and director of defendant company, said that in 1882 the company was not manufacturing pharos. The following year they started to make chilled cast iron shares. They were marked "P. and D. Duncan, R.N.F., 44." Witness produced a mould. No alteration was mado in the marking until 1915, when it was complained that clay soil adhered to the lettering. Thereupon tlio lettering was trnns- , ferred to the undersido of the share, and was abbreviated to "P. and D.D., R.N.F.," and the number. The customer was given a choice of imported or locally-made shares. Within the last four years the linn had stopped importing sharqs for Christchurch, but they still had a few for Ashburton, as some farmers there required tho imported article. To Mr Peacock witness said that his firm made 60 or 70 different kinds of ploughs. A' the present time they wore selling about 150 a year. About twothirds of tho total took the "R.N.F." head.

"As a matter of fact we have put Ransome's on the map," said witness. "They should b« paying us a bonus instead of suing us for damages!" Witness continued that he was not responsible for the placing of "R.N.JY' on tho shares, but he was of the opinion that they wero necessary $o as to indicate that the shares would fit the "R.N.F." head. Lionel Lingwood Cordcry, secretary and director of the defendant company, said that up to 1914 the firm imported a fair number of Ransomc'a shares. Without exception "R.N.F." was specified when "R.N.F." shares wero required. At this stage the Court adjourned uatil 10.15 to-day-