LAW REPORTS.

Dominion, Volume 4, Issue 1188, 25 July 1911, Page 10

LAW REPORTS.

| : - ; CGURT OF APPEAL. ■$£ AN INGUSH BRAND OF BEER.. 7i-: '•''• AND COLONIAL ONE; ''-!'•'-' The .Court of Appeal, consisting of the -yr- Chief Justice ('Sir Robert Stout), Sir :-•. Joshua Williams, and Justices Edwards '-"•'£'. and Chapman yesterday heard tho appeal -■!"'-" of Read Bros., Ltd., bottlers, of Iven- ■• -■'-•' tish Town, London, v. Cowie and Co., boti'*\v tiers,, of Qavcrshara, Duncdin. . ,'';'' Some-time ago, Mr. Justice Cooper heard i ••■■■■ on appeal from a decision of tho RerS"''. gistrar of Trado Marks allowing an .-*■'-■' • application by Cowie and Co. to ro- '!!'••<"' ;'■■ ■ gister. a certain trado-mark< for beer." i'r "■:.'■ Bis Honour then stated that the onus ;.'-.. was on Cowie and Co. who, as appli■'lSV cants for registration of their trade ■'■'■'. mark, must show affirmatively that :•£; •'. ■ it was not calculated to deceive per'i':. eons into tho belief that the ■ beer '.?vi 6old by thera was English beer bot.|V< tied by Read Bros., proprietors of tho >'v registered Dog's Head trade mark. ["? Jn his Honour's opinion Cowio and Co. /'■> ■'. had fully satisfied tho onus, and tho ■."". . appial must bo dismissed. I;'- The mark of Cowio and Co. was a dis- '■.{•:', - tinctivo and woll-drawn bull's head '.';■".' within a circle. In bold capital Ict- • ■■■' i ters round the circlo were the words: i.-'i-v "Cowie and Co., Bull's Head Bot'- ":; ■ fling." .'• ;3fl Cowio and Co. were New Zealand r.y brewers, they were required to place :"£•:■ upon the neck of each bottle, in disi!''.; tinctivo lettering, a label with the 'v\- words: "Browed and bottled in New .'- i.'.'v ', '• ' Zealand." . J, 1 .; JThcse words did not form part of the • -:v* - trade mark, but' their use was impera- '.;";, tire. The other trado mark was a ' f; 'very distinctive head of a bull-dog ;/■;- within a circle. In bold letters, sur- ;.-;'. rounding the circle, were the words: '■:■: "Read Bros., Ltd., London, the Dog's ; !;■■;;• f Head Bottling." ; '.;•,■■ 'The most unwary purchaser (said his ■s-.' • Honour) could not bo deceived. Elim- :.'..,' . ; inatiug everything .extraneous to tho ; ;;• actual trade marks',- and contrasting ■ :-. them, there did not appear any fea- : >'';." sonable ground for belief that one ■■'" ;._...wnW bo mistaken for. the other. ;■''■.-j [His Honour dismissed the appeal, and ■ '"''' ■ ,S? th ? P Tesent appeal by Read Bros. ' .";'." i m A | ter .bearing tho argument' of Mr. :<v. i T. Young for appollants and Mr. H. F. ;/. ; von Haast for the respondents, their' •;,;',-. bHonours.decided that Cowie and Co. had t .v ; .. J not. made out sufficient grounds to en- ; ..;,., ,ablo the Court to. over-rule tho decision ;• i'V: \2J- M J- Justice Cooper. Tho appeal was ..,,. therefore dismissed. '■%' - A NEWSPAPER BUSINESS, '/)■' ' PROPRIETOR AND LESSEE. : ,;,; ~Justices Sir Joshna Williams, Edwards, ; j Chapman, and Sim wero on the Bench ; ;;• jwhen the case W. H. Smith (appellant) , v. >v. h. D. Hoben (respondent) was called • ~,. ion. Mr. C. B Collins represented the ; ; :,v ! appellant, and Mr. C. A. Loughnan repre- : •;.-;' isented the* respondent. ■ I- ■;/;■■ .The appellant is proprietor of the newsn .-paper, tho "Manawatu Daily Times," and . % ■ itbo respondent is lessee and alitor of the ■ g; jpaper.. The appeal was against a iudg- ■ :■-.. went .of the Chief Justice regarding a : -~;: question of interpretation of a lease. °A.pvy. pellant had disputed respondent's action' ". ?::-■}*■ drawing i-10 weekly from the business ~;.,. in. anticipation of profits, and respondent y had claimed that the agreement gave him : v; ; tfie right so to do. jv; ,Mr. Collins had not finished his argu- ; :-x ment, when the Court adjourned, and tho >:". -case -will be continued this morning. ft LAY FUN AND THE'OPIUM ACT, ; •-■ CASE-PROM NAPIER. '~ . The Chief Justice (Sir Robert Stout) .. ;, heard, an. appeal against a judgment dc- " J, I Y. e r r€d rn a by Mr. S. E. M'Carthv, ..- ■ b.M. The case wafl one in which a Ch"i- ---/.-■ ncse named Lay had been charged ;..■ with haviiig had opium (in a form con-. ; v trary to the provisions of tho Opium Act) v.j in his possession. Tho magistrate had ■ >y< decided that Lay Fun was guilty, and i .- : 'if » fine °i ■£30 bad been imposed, in default : •;- three months' imprisonment. ; V; , The defendant then moved for a writ prohibition, and, by consent, it was ■■ :■■:. arranged that the defendant should,-at :■.:•<•-•• the same time, move for a writ of cer- , ,;,.. tiorari to have tho conviction quashed. :■ '■'■ J lr ' Toogood appeared and supported -,;, the motion. Mr. H. H. Ostler, repre- : •!: ' senting tho Crown, opposed it. ■ .", Mr. Toogood stated that the writ' had ; ;;,, boen asked for -on the ground that Lay - j; Fun had been sentenced to three months' ~-.;-. imprisonment, in default of payment of !■ •":'"■. Y,° fin , e . for a breach of the Opium Act. i ,-.,, Also, ho stated, the magistrate had not L./,;;: advised Lay Fun that he had a right ■ a" ?f a • T i nTi '- Comsp:l submitted that • v-.v the Opium Act was a Customs Act, and : -w a. person charged under a Customs Act ..;., had the right of trial by jury. .;.!' Mi- Toogood had not concluded his ar- ;;: - >pument when the Court rose.