SUPREEM COURT.

Dominion, Volume 6, Issue 1864, 25 September 1913, Page 11

SUPREEM COURT.

TRADE MARKS ON SUSPENDERS

| AMERICAN GOODS. THE CONFLICT OF RIVAL FIRMS. Suspenders, trade marks, and cognate matters were before his Honour Mr. Justice Sim in the Supremo Court yesterday. Tho plaintiffs were tho C. A. Edgarton Manufacturing Co., of Shirley, _ Massachusetts, United States of America, and tho defendants Wright, Dixon, and Witt, warehousemen, of Wellington. Mr. T. Young appeared for the plaintiffs, and Mr. T. Cotter, K.C. (of Auckland), with him Messrs. J. Stanton (of Auckland) and A. Fair, for tho defendants. The defence was really conducted by tho Dominion Suspender Company, of Niagara Falls, Canada, the .manufacturers of the goods which were said to have infringed plaintiffs' trade-mark. American Co.'s Claim. In tho statement of claim the Edgartor. Co. set out that ono of their chief products was suspenders, for which, thoro was a largo salo in New Zealand. They were tho registered proprietors in New Zealand or Trade-mark No. 6350, August 27, 1909, and bearing tho word "President," in relation to suspenders, and also of Trade-mark No. 80. dated April 27_, 1910, bearing tho word "Shirley," in connection with susponders and garters. Their goods had boen sold in tho Dominion for years, and had boon known as "President," and "Shirley President." During 1911 Defendants had been selling goods in infringement of tho trademark, and woro then warned. Tho defendants, however, had continued to sell. It was further alleged that suspondeTs under tho namo of "Presir dent," and of a get-up similar to that of the Edgarton Co. had been sold during the year 1913. A continuance of this was feared, and tho Edgarton Co. therefore claimed nn injunction distraining defendants. The Other Side's Version. The statement of defenoo denied,,that tho plaintiffs were the lawful or duly registered proprietors of the trademark. Tho sale of suspenders of tho' Dominion Company's goods under the mark of "President" was admitted. It "was denied that such sales were an infringement of plaintiffs' trade-mark or that tho goods Bold by the defendants woro calculated to deceive. Tho word "President" (in relation to suspendors) was common to tho trado, and was commonly used to denote suspendors rnado in a particular way —an arrangement of pulleys and coiids. Tho susponders sold by the defendants had been manufactured by tho Dominion Suspender Co.. of Niagara Falls, Canada, and had been sold in New Zealand since 1901, and prior to tho uso by the 1 Edgarton Company of tho word "President 1 ' in the Dominion. Tho Dominion Suspender Co. had, in fact, been tho first to uso tho word in such a connection in Now Zealand. Defondants had never represented that tho suspenders sold by them were manufactured by tho Edgarton Co.; nor did such sales lead tho trade or purchasers to believo that they had beon so manufactured. If at any timo_ thcra had been any infringement (which tlio- defendants denied) tho Edgarton Company had acquiesced, and had forfeited the right to interference. Tho _ original patonteo had been one M'William, from whom tho Edgarton Company hold a license for the manufacture and sale of susponders in tho United States and the Dominion Suspender Co., in Canada. With tho rights of -tho latter company to sell in Now Zealand, the Edgarton Company could not interfere. No patent for tho suspenders had been taken out in Now Zealand, hut the Edgarton Company's agents had falsely represented it had, aiid had further asserted that they held tho only patent for New Zealand. Legal Argument. Mr. Cotter said that tho quostion was essentially ono of fact, and submitted that his Honour should oithor dccido in favour of tho defendants, or settle questions to go to a jury. The statements mado. in the defendants' affidavits were, of course ; only general,' but they were uncontradicted. On December 2, 1910; ho had written to Mr. Hamlyn, pointing out in.no doubtful terms tho position taken up by tho Dominion Company. That letter was an actual challenge, and proceedings should havo been taken. They would thon have been eighteen months ahead of tho present position, and tho Edgarton Company could not then havo suggested that the articles had beon put on tho market since tho registration of the trado mark. Whatever had occurred was in consequence of Edgarton Company's fault in threatening, and not carrying out their throats. A peculiar thing also had happened-with regard to tho action. Altnough tlio representatives of both parties had their business places in Auckland, tho first action was discontinued, and anolhet notion, commenced in Wellington. Evidence on bohalf of defendants as to who was entitled to tho exclusive- uso of that trade mark was overwhelming. The affidavit of Duck, who was supposed to bo an export, did not show how long ho had been a salesman: he might havo entered the employ ot the Auckland firm only the day. before, and ho might bo a young man of 17 or an old,man of 70. Yet that witness deposed that the name "President," as applied to braces or suspenders, was understood by the trado to mean those manufactured by plaintiffs. Mr. Cotter thon read tho affidavits of Mr. Colgram, for thirty-eight years manager of an Auckland firm, and Mr. James Marnnm, manager for another film in Auckland, stating that tho "President" suspender was oxtensivoly manufactured by England and American firms other than plaintiffs. Those affidavits, ho submitted, showed that there should bo a trial of that issue. His Honour: I am not going to act 'on stereotyped statements like that? I will uot aflcout .moral Btatemonts. Be-

fore I can accept their ovidenco they must bo cross-examined. If that question is material, it will liavo to be tried. They all swear affidavits beeauso the words are put into their mouths. Mr. Cotter: That remark has frequently been made with regard to affidavits, and wo all believo that ovidenco by affidavit is not the best way of eliciting the truth. Mr. Young suggested that defendants should apply for registration. Mr. Cotter consented, and his Honour adjourned the hearing sino die, in order to onablo the "Dominion" Company to apply for registration, the ques> tion of costs being reserved.