THE TRADE MARK CASE.

Press, Volume LXVI, Issue 20098, 29 November 1930, Page 6

THE TRADE MARK CASE.

SUMMARY OF EVIDENCE. addresses by COUNSEL. The hearing of evident r ot - bolh parties having concluded, legal argument by counsel engaged in the Trade Mark case occupied the attention of the Supremo Court yesterday. So far the ease has lasted five days. Argument ' by counsel for tho plaintiff company will l*e continuod this morning. Tho plaintiff company is liansonie, Sims, and JetfFcries, T/td., of Ipswich,' England, engineers, and the defendant company is IV and J). Duncan, Ltd.. of Christchurelj. 11 is Honour Mr Justine Adams is on tho Bench, Mr J. 0. Peacock, of Wellington, is appearing for the plaintiff, and Mr J. 11. Upham, with him Mr 11. W. Wjiito, for the defendant. Plaintiff claims that the defendant company has infringed tho plaintiff's trade marks by manufacturing and selling shares for ploughs bearing the mark "IMS'.I* 1 ." and by ndvertising that it manufactures and sells "It.N.F." heads and " R.N.P." shares for ploughs. Plaintiff claims an injunction to restrain the defendant from infringing the trade marks, also an order for delivery up to the plaintiff of all ploughs or parts iu the possession of tho defendant, such further relief as is deemed fit, ami the costs of the action.

Only Throe Makevs.. Mr t'pham said that tho evidence showed that the defendant company started manufacturing ploughs in Christchurch in 18l>8. In 18813, Booth, Maodon.ild and Go. started malting ploughs in Christ-church, and in addition to Held and Gray, of Oamaru, those were the only companies of plough manufacturers in New Zealand. Three types of ploughs were imported—the Ilornsby, the lteid and Gray (Scotland), and the Kansome. All threo New Zealand firms adopted the Reid and Gray type. One of Moid and Gray's ploughs was sent to Ransomo's, in England, and Kansome's copied it for use in the colonies, naming it the "S.M.E." plough. It had an "R.N.F." head and took an "R.N.F." share. Tho "R.N.F." socket on the share fitted the "K.N.F." head, but it was different from the other shares. In Hie "S.M.E." plough the only difference from other ploughs lay in the head.

Mr Gray, in evidence, had stated that lie wished that the plough heads were standardised. He, a manufacturer, had sacrificed his own "K. and G." head, and pushed the manufacture o£ the plough with the "R.N.F." head.

Standardised Head Desired. It was eminently desirable that all ploughs should have a standardised head —"K.N.F." —which would do away with a great de.ll of confusion. The farmer, when ordering shares, would only have to specify size, width, rind weight. A reform of that kind would do nwny with any such question as that under review.

Vv'licn tlio defendant cuiupaiiy began making ploughs they did not then contemplate manufacturing shar ~s. Ifeid and Gray Blurted share-making in 1879 and P. and IX Duncan, Ltd., in 1883. It would have lippii useless for cither company to manufacture ploughs without shares, unless they nuiide them with a head that would take some wellknown brapds of slwres. P. and D. Duncan's catalogue of 1882 specified that their ploughs were made with a Hornsliy "C " head, as t : .ose shares •were readily procurable in New Zealand. It "was also stated that the ploughs could be made with "R.N.F." heads if desired bv customers. 'When Keid and Gray started bufuiiess Mr Gray adopted the heads that would take the shares manufactured by his brother in Scotland. All the ploughs in New Zealand were made with one of the. three standard pattern heads—"llornsby 0," "lt.N.F.,'' or "It. and tt." In 186S these makers were committed to making ploughs with standard pattern heads. His Honour: That would certainly be an inconvenience, but if thero was ail infringement of the trade mark it could not be excused on that aceounl.

Patented in 1803. Air Liphani continued that the plaintiff company had had remarkable success at a Newcastle Show, and after that had Used the Newcastle series o£ letters —"8.N.F." etc—to designate their ploughs. One catalogue stated that Itansomo and Sims had ft largo number of patterns of ploughs, I'hc patterns were distinguished by letters and numbers on the breast, frame, head, and share. The original Mr Kansonie had taken out the patent in 1803. That included ttie chilled cast iron share, which had a diamond-hard cutting edge. The rest of the share was softer, and wore away, with the result that it Was aways kept sharp. "A man could say, *My plough has an R.N.F. head, a Scotch head, or a Hornsby head,' therefore the shares will have to be marked with the hand of the head they fit," said Mr Upham. Letters Of the alphabet were non-dis-tinctive by their very nature. The evidence was that all agricultural implement-makers required pattorn marks for their goods. The action was certainly over tho letters " R.N.F.," but it might just as easily have been over any one of the other 40 combinations of letters. In the catalogues it would be seen time and time again that the designations of the head and the share must correspond.

' • E.N".IV' A Pattern Mark. ■t> 'JL'Uc catalogues, with the exception of -Alt Keir'a evidence, provided the only evidence of what happened in the early days. It was doubtful if many of the "catalogues came (o Now Zealund; They were conclusive evidence that the plaintiff company itself regarded the letters "R.N.F." solely as a pattern marlt. Mr George Booth had said that Ransoino's shares, obtainable in New Zealand in .1880, bore the words "Rarisoimrs Patent," in a semi-circle, and the letters "R.N.F." Those letters merely indicated the socket. If his com pany adopted those letters as a pattern mark it must have been done quite innocently. It must have been done without any knowledge that tho plaintiff company claimed the letters as a trade mark, All the implement-makers in New Zealand regarded the letters purely as a pattern mark, and they "were correct an was shown by a case in England in 1882. It was extraordinary how the plaintiff company came to register the marks in tho first place. For 48 roars, tho defendant company had used the mark uninterruptedly. Identification Mirk. 'Mr Peacock Said that the defendant companv's witnesses had been under a complete misconception of the relative importance of the head uud the share. The number of the share was the pattorn mark. The defence was purely an it tack on plaintiff's registration of trade mark in 188S). The letters lijjjfji" had always been indicative of the plaintiff company's manufacture. Thp defence claimed that the letters w . e re merely descriptive, and merely a ittern mark. That, he submitted, was nuita wrong. Mr Booth had stated in 2viilence that people wanting Ratishares would ask for "R.N.F."

and give the number. Mr Keif's evidence was to the effect that the customers knew tho "8.N.F." Bharea as Bansome's. Mr Gray said that ha would havo looked for "B.N.i 1 ." as a designation of Bansome's shares. Mr Mulcock had said that "B.N.^F." On the shares conveyed to him the impression that they were made by Bansome V. Others stated that when Kansomo's shares were required, the term "R.N.F." was used. The defendant company had not called any fanners to say what they understood the letters "li.N.F.'' to mean. What the farmer, the who used the" goods, thought, was most imr>ortant. At this stage tho Court adjourned until 10 a.m. to-day, when Mr Peacock will continue his address.