GINGER ALE DEVICES.

Dominion, Volume 6, Issue 1824, 9 August 1913, Page 14

GINGER ALE DEVICES.

THOMSON k LEWIS'S TRADE MARK: NO INFRINGEMENT. ■ Trade marks bulked largely in an action which was decided in the Supremo Court yesterday morning by Mr. Justice Snn. I his was a case in ' which Schweppes, Ltd., askod for an injunction to restrain Thomson, Lewis and (Jo. from using a. trade mark, which Schweppes alleged infringed a registered mark in use by them., Mr. C. P. Skerrett, K;C., with Mr. W. H, D. Bell, appeared for Schweppes, Ltd., at the hearing last week, while Mr. C. B. Morison, K.C., with Mr. A. do B. Brandon, jun., appeared for defendants. Schweppes, Ltd., are aerated water and ginger ale manufacturers, of London, and Thomson, Lewis and Co. are aerated water manufacturers of 'Wellington. According to the statement of claim, Sohweppes, Ltd., had a 'distinctive • label in respect of ginger alo. Part of'this label consisted of a device of a fountain enclosed in two concentric circles— the whole in tho form of a red seal. I'or many years Schweppes, Ltd., had used tho trado mark on goods manufactured by them. It was alleged that for some time past Thomson, Lewis and Co. had distributed large quantities of ginger alo (manufactured by thorn) in bottles bearing labels, which infringed tho trade mark of Schweppes, Ltd. By reason of such infringements,Thomson, Lewis 'and Co. had deceived tho public, and Schweppes, Ltd., had suffered loss. By way of defence, Thomson, Lewis and Co. denied tliaf the ginger ale sold by Schweppes, Ltd.; was generally known by its trade mark, and denied that 'the labels used by theiii' (Thomson, Lewis and Co.) constituted infringements of any of Schweppes's trade marks. The labels in question were supplied by an English firm, and were "stock" labels sold by that firm to anyone requiring them. Thomson, Lewis and Co. further said that the design of their trado mark had been altered in order to meet the wishes of Schweppes, 'Ltd., and to ovoid litigation, the condition being that Schweppcs, Ltd., .should pay costs of the action up to that date. ' In the course of his reserved judgment yesterday, his Honour held that the red seal a.nd fountain used by Thomson, Lewis and Co. was not an actual or substantial'copy of tho trade mark of Schweppes. 11l order to succeed, therefore, ill the present action, Schweppcs mii*t provo that Thomson, Lewis and Co.'.-) label, by reason of its similarity to that of Sctiweupes, was calculated to cause Thomson, Lewis mul C'o.'s ginger alo to bo tnkon (by ordinary purchasers) Sex, Jilwj prt;«o'- miwufacmod 'by

Schweppes. Upon a consideration of the facts, liis Honour came to the conclusion that this had not bsen proved. Schweppes had therefore failed to establish any infringement of their registered trade marks, and judgment must be for Thomson, Lewis and Co. Costs on the lowest scale were allowed, together with disbursements and witnesses' expenses.