TRADE MARK CASE

Dominion, Volume 13, Issue 20, 18 October 1919, Page 3

TRADE MARK CASE

JEYES FLUID

ALLEGED INFRINGEMENT (Extended Report Published by Arrangement.) A prosecution under the Patents, Designs, and Trade Marks Act was heard before Mr. W. G. liiddoll, S.M., at the Magistrate's Court yesterday. Tho defendant was Daniel Moar, trading us the Dominion Proprietary Company, and oil the.iiifohnation.of Arthur C'lmaes Nottingham,- New Zealand'attorney'ior tho Jeyes Sanitary Compound Company, he was charged-v.tii latsoly applying to goods a certain mark so nearly resembling the registered trade.mark of Jeyes Sanitary Compound Company, of 61 Canon Street, London, manufacturing chemists, as to be calculated to deceive with, intent thereby to defraud tho eaid Jeyes Samtary Compound Company. The del'enoe. was alleged to have 'been committed on January 20 last. The prosecuhon was conducted by Mr.P. J. O'Regan, and tho defendant was represented by Sir John Findlay, K.C. At the outset. Sir John Findlay entered a plea of not gutty, and intimated that tho defendant elected trial by a iury. In his oponing address,, Mr. O'Kegan •aid that Mr. Nottingham! was the sole New Zeaalnd representative and attorney of the Jeyes Sanitary Compourld Company, of London. The company did not 'fifll any larger, quantities than quarts except through their attorney. Mr.-Not-tingham instituted civil proceedings in March last, claiming damages, and ail injunction against tho defendant far sailing the fluid purporting to be Jeyes Fluid, and bearing trado marks resemb.ing those of the Jeyes Sanitary Compound Company. Following a conference, an . arrangement was come to, and. as a result the defendant gave up 15,000 labels, and al«> the block for printing the labels. However, defendant was still bottling, a compound which purported to be Jeyes Fluid, but which was something entirely dilferent. A provis'oriajl settlement was arrived at, but owing to subsequent hap?onings, Mr. Nottingham refused to ratify he arrangement.for a, settlement. Tho civil proceedings were dolaycd, nnd these proceedings were insfc'tutod. Arthur C; Nottingham gave evidence on the Jines of counsel's statement. The defendant had agreed to cease- using the trado mark, and to desist from Boiling Jeye6 Fluid. Moar had not kept his promise. (?ir John Findlay raised, the point that after a person had legally obtained Jeyes Fluid ho,wra entitled ro soil it. , Jlt. O'Regan: It is not an offence for niiyoiie to sell genuine Jeyes Fluid. If it could bo proved that the fluid-in question was Joycs Fluid then the salo was «;u'.te legal.' ' . , - Sir. John Findlay: The witness-men. tioned that Moar had* agreed 'to discontinue selling Joyes Fluid, i ■■ Witness exp.ained tlmt Moar had'proniiMd to discontijiuc the sale of' the orticlo or fluid he called Jeyos Fluid: Tests were uiado of the fluid "taken 'from the defendant's promises, aud as a result it was decided to insttute proceedings for damages and. an injunction. During the past twelvo months the company's tales had dropped to the extent of .fcMjOu. As far as lie know 'the '.particular fluid had not been sold in Christohurch.

To Sir John Find Lay: W.tnesu had been 23 .years attorney in New Zealand for tho Jeyes Sanitary Compound Compr.iiy. He had instituted the proceedings for the - protection of his business, his principals, and tSe public. Nobody coiLd receive bulk quantities of Jeyes Fluid except through witness. He know that Kempthorne and Prosser- sold- fivo-gallon drums to tho CityJSouncil and hotels. By arrangement they are not allowed to sell tb private individuals. It wouid bo wiong if this firm suld five-gallon, drains to the defendant. H© was not aware that I/. W. Virtue and Co. sold to the rlol'eiidant 12 one-gallon tins of the fluid — they did not get it through witness, He did not know.that Sharland and Co. had Hold to-the defendant Jeyes Fluid in quantities, ga110n5....,H.e. .had'not jiui|'u'.rod;fiwiuthat firm, if' they>had. -Are y6ii.aware'_or liiiye yon,.beard.that large" t|uniitities"of Jeyes Fluid-are-being shipped to New Zeaiand other ' than through yourseJf? Witness,: I do not know, of that. Are you not aware that the Jeyes Sanitray Compound Company are selling large quantities of Jeyes Fluid to firms :n England, and in violation of the agreemebt with the company some of these firms were shipping large quantities in bulk to Now 'Zealand ? Wlitness: I could not say. Will this surprise you? .An Auckland firm has given an order to the defendant to buy five casks, each containing it gs».lons of Jeyes Fluid. Witnws; I don't believe it. Sir John Findlay: I would adv'sc you before you go to the Supreme Court to make a littlo more inquiry about a firm in Auckland which is selling large quantities of Jeyes Fluid in New Zealand. Is it not a fact that the settlement proceeded on the assumption that Moar hud acted Irona fide?—" Yes." Witness explained that his olerk mude the proposed settlement, but he refused to ratify it. Witness did not knowthe contents of the bottles he took from Moar's prenr'ses in .March.last. ,He never bad the contents' teste*!, and he. could not say • whether 'they contained Jeyes Fluid or not. Witness did not suggest that Moar was responsible for the drop in his sales. , Continuing, witness said that he instituted the criminal proceedings as endeavours to bring about the civil proceedings, which had been continually delayed. He was not prepa.red io say that the present proceedings against Jlonr were'tak«n to deter larger men from either importing or manufacturing the spurious fluid.

Re-examined by Mr. O'Began, witness said that ho had 110. reason to bel:eva that Jeyes IV.uid had been imported into Now-Zealand by anyone else. '.According to his'contract, with the company, all Jeyes Fluid in bulk for Now Zealand must pass through witnefw's hands!- If the fluid was coming into the country other than through his office, then someone was committing a fraud on his right.

To Sir John Findlay: All five-gallon drums of Jeyes Fluid contained the neat of tho "rising sun." If this were not on, the .seal then the fluid was not genuine Jeyes Fluid. '

\ Counsel for the defemhr. hern intilnntod that he -would produce seals taken from the dnuns purchased by Moar which were evidently not. genuine. •

Profesosr T. H. Easterfield gave evidence as to the results obtained from th'e analysis of samples submitted to him for examination. All the samples of genuine Jeyes Fluid he hnd tested, behaved simiilar.iy under a variety of experimental tests. A comparison of the genuine and the other fluids suppHed to liini showed that the second set of samples behaved in a different manner under the testis. A drop of Jeyes Fluid did not quickly dry up, but a. drop of the second fluid congealed in about half an hour. The specific gravity and alkak'ditv in the different samplo? of the second fluid was not constant. Gen,nine Jeyes remained in a liquid fonn on being heated to ISO degrees C:, whereas samples of the other fluid turned into a pon'dgy mass, and gave off white decomposition flames. No ono of the samples of the second fluid was of tbe samo formation as the genuine fluid, which was uniform in a: 1 (samples.

Stanley John Hewitt, chemist, of Christclrarch, said he had made tests of the genuino Jeyes Fluid and the fluid manufactured by Moar. He made. the. tests about ten days or a fortnight ago. I'ho results showed a deviation between the genuine fluid and the alleged gpiirioua fluid in their composition. To Sir John Fimllay: Jeyes Fluid was jiot manufactured in different qualities. The fluid was all of. the ai.'nic quality. Counsel pointed out that tests ot samples of the second fluid shewed widely different, results, nnd askod whethtr that did not ou'ggest that several person* were manufacturing a spurious fluid. Witjicjs fnid that, it might lie so, or tlio difference might result from ignorance of' proper working methods' or by' the mixing of two or more fluids. The apparatus required for tlio manufacture' of the fluid need not be very elaborate, but witness doubted whether a fluid exactly corresponding to Jeyes could be manufactured by anyone not in possession of the details of the Jeyes system of manufacture. Hubert Michell Williams, duet clerk to Mr. Nottingham, who resided at Christehurch, said that ho visited Wellington in January last and saw the acaiised '' Witness asked the latter if he <£bi# bottling Jeyes Fluid, and he said

ho was, and found it difficult to obtain supplies. When asked if lie had any drums he enicl hi) had none. Jeyes was shipped in five-gallon tins, and all sent to New Zealand should coiiie through their hands. Although Hoar said he had difficulty in obtaining supplies he would no: giro witness an order for the fluid. Witness, subsequently mado further- inquiries and found that tho fluid put up by Moar was being sold in various retail stores and also by two wholesale firms.,

.To Sir. John Find lay: When ho visited defendant's premises he saw no evidence of manufacturing. Witness knew tlmt defendant had been supplied with Jeyes Fluid by Kenipthorne, i'rosser and Co. and Snarlan:l : and ' Co., and it had not occurred to him to have Samples of'such supplies analysed. To Mr. O'Kegan: Jej'63 Fluid was not shipped to New Zealand in. casks, at any rate not through his firm. Herbert Thomas deposed to _ having purchased one gallon tin of fluid from tho defendant at 12s. Gd. Detective Andrews stated that on September b he executed a search warrant, and a warrant to apprehend Moar. The latter when questioned said that when he was, using tho "Nnrao" trade mark a settlement was arranged and'all thoso labels were destroyed, and that lie had not used those labels since. His present labels, he said, h*d tho words "Jeyes Fluid," and he claimed that he was entitled to use those words as they were not registered and that no person could register words as a trade mark. The detective said he seized 100 dozen bottles of the alleged Jeyes Fluid,l3o "Nurse" labels, and 4000 odd otaor labels. Thirty five-gallon drums' wero not seized, as Williams, who accompanied witness, was. satisfied .that the drums were genuine. Moar stated that the 130 ' Nurse labels had been overlooked when ho handed the.'others to Nottingham. Sir John Findlay remarked, after reciting the circumstances, that tho case was so weak that a jury would throw it out. ' The Magistrate! said that the onus was. upon the defendant to show that the case should be dismissed,-, and although a weak prima fncio caso had been mado out he did not think it would be proper for him to dismiss the caso on the grounds suggested by oounsel. "At the same time, remarked His Worship. 'I do not think that a strong case has been made out. The defendnnt should not have been arrested, and the proper courso would have been to bring -him before the Court on' summons." Moar pleaded not guilty, reserved Ins defence, and was committed to the supremo Court, for trial. Bail was allowed in .£SO and one surety of JSO.