SUPREME COURT

Dominion, Volume 13, Issue 43, 14 November 1919, Page 3

SUPREME COURT

CRIMINAL SESSIONS

JEYES FLUID TRADE MARKS CASE His Honour Mr. Justico nosking and ft jury heard the case brought against Daniel- Moav, trading as tlio Dominion Proprietary Company, who was charged wtir falsely applying to goods a certain mark so nearly resembling the registered trade murk of Jeyes Sanitary Compound Coin piny, manufacturing chemists, es lo bo calculated to deceive, with intent thereby lo defraud the ''Jeyes Sanitary Compound Company. The offences (there were four counts) were alleged to have been committed on January 20 and May 20 last, The accused pleaded not guilty. Mr. P. S. IC. Macassey, of tlio Crown Laiv Office, appeared for the Crown, and Sir John'Findlay,. K.C.. with him 11 r. L. Edwards, for the accused. Mr. G. J. It. Hell was foreman of the jury. Mr. Mac-assey, in opening raid that Mr. Arthur C. Nottingham,.of Chri.stchur.ili, was the sole agent in New Zealand for Jeyes Company and the company l ad two trade marks, one known as the "Nurse," and across the face of it tliero appeared the word "Jeyes." This trade mark was applied to bottles. The second tradu mark was known as the "Risiiiij Run," which was applied to tins. The trwlfi marks were the registered trade marks of' Jeyes Company and nobody else could sell goods under these tradsi marks. Moar had been carrying on business as the Dominion- Proprietary Compniy, and had been liottling a fluid which lie called Jc.ves Fluid, and had applied the '"Nurse" trade mark to the bottles and the "Rising Sim" trado mark to tins. Early this year civil proceedings were taken against tho accused to put a stop to his practices by obtaining an injunction. A defence i as filed in which it was stated that ho was not aware that he was offending, and after some negotiations a provisional agreement was -wlied. Mr. ham, however, declined to agree to the settlement. Arthur C. Nottingham, attorney for Jeyes Compound Company, gave evidence similar to that given' in the lower Court. Witness produced the alleged .false trade mark "Nurse," of which 15.0(10 were socured. The genuine trade mark was also produced. Sir John Findlny said that thoro was no dispute on the matter of the. labels--there w,is> it technical infringement. The defence would he that the labels came into the possession of the accused from his predecessor in tho business,, and tho whole defence would lie that there was no fraudulent intent, no intention of dishonesty. Continuing, witness said that his -eason for dwont'mning th" '■ivil proceedings find instituting criminal proceedings was that after tho accused handed over Iho labels and blocks, he hed rew laWs ' printed and "went on with the game." Cross-ex.imined, witness said when h° ■wont to fee .Moar the latter promised to discontinue the practice. Sir John Findlay: Hk( you not commence these proceedings on the essimint.ion that no one could get Jeyes in bulk except through you?—"I commenced the proceedings because the mail was boltlinir o fluid which was not Jeyes Fluid." His Honour: Did yon at that time asfnime that no one conld get bulk Jeyes Fluid except ihrough you?—"lTes." Sir John Findlay: Are you aware that Kempthorne, Prossev and Co. have, told Jeves Fluid in bulk? Here is an invoice of 100 gallons sold to Moar.—"Yes; since March last." Would vou ho surprised to learn that Jeves Fluid in bulk was coming into New Zealand through other agents?— "That is unknown to me." Ho vou know that Frederick C). Leonnrd and Co., of' Auckland, have imported Jeves Fluid in bulk?—" No." •_ , Sir John Findlay showed an invoice of five casks of Jeyes Fluid indented' for tho Dominion Proprietary Company'. Counsel also said 'Hint"D,',W. Yivtue.- nitd"Co.' were able to sell Jeyes Fluid in bulk. Witness stated, that he knew that an other firm was buying Jeyes 'Fluid in bulk, and bottling it. and also that the same thin; was being done in Auckland. He proposed dealing with these people later on. Professor Easterfiold, who analysed' the samules of the lluid, both Jeyes and some that was purchased, gave technical evidence. Sir John Findlay: Is there anything to oreve.ni' Jeyes from varying from time to time the recipe of their fluid?— "Tt would be Uid practice. No firm with a reuutatioiv would turn out samples that differed." Stanlev John Livingstone Hewitt, manufacturing chemist, 'Christchnrch, stated that his tests showed that i the eenuine Jeyes Fluid differed materially from the alleged spurious lluid. Herbert Mich.iel -Williams, chief clerk to Mr. Nottingham, the attorney for Jcvcs Company, gave the same evidence as in the Lower .Court. In ansivcr to Sir John Findlay, witness said that a fluid purporting to bo Jeves Fluid, but which was not genuine, was beinj sold in New Zealand, and they had not \ct been able to determine whether the fluid was being imported or beine mnnufacmrco' in the Dominion. John M. Davis, salesman at the Now Zealand Drug Company, gave particulars of sales of, Jeyes Faiid.to the Dominion Proprietary Company. , Leonard 11. Mouldey, clerk, employed •bv I'airbairn, Wright and Co., declined ffive evidence, but v.as ordered to do f.o. Hejgavc details of the nil'chasing of a dozt'ii bottles of the fluid from Monr. and the sale of the lot to Wil- ■ limns. Jtr. Nottingham's clerk. This closed lie case for the Crown. „ The Cass for the Dcfencc. Sir John Findlay, in opening, for tho defence, said that tho jury must already have come to regard this case as unfortunate, but when they heard the evidence for the defence they would feel indignant. The details of the case were that the'accused, who had been called ni)on to answer a criminal charge, was at the beginning of last year foreman of tho Westport Cnm;.iny's dredge, and knew nothing nlvnut chemistry. A friend brought under ' his notice tills bottling business, which was offered for sale, and offered to find the accused with the required.. ■ The man in the dock did not. know anything about chemistry or the" corn-til uent-s of Joves Fluid, but ho bought the business. The amount of stuff he tQok over was valued at .C 125. and the remainder .was for goodwill, etc. There had been used in the busings the "Nurse" label for some considerable time before the accused became proprietor of tlio business, lie made no alteration in the lab"!, and lie used it in the entire belief that lie was free In use it. Jeyes had two. trade marks, knownjn New Zealand was the "Rising Sun." and the accused- lvtrardcd .that as Jeyes' tmflc jnark. He knew nothing of the "Nurse" trade marlc, bei"g J»yes'. Tie went on bottlins the v fluid and applying •the. label, getting the label nrintrd from tune to time as required. When he wis told that he was infringing the trade mark he. immediately n«ed the label"Pure Jeyes' Fluid, ho I fled bv the l)n----minion Proprietary Company," and so it continued until one morning lie was visited by Detectivc Cox. Mr. Macassey objected to this as this visit was long prior lo the. dales in the indictment, and' had nothing to do w-Hi the ease, end afto- soiv argument His Honour decided not to allow reference to that. After further reference tn the u s <" of the. labels, counsel said that' Mr. SkcrT"(t, on Mialf of Nollim'bnm. wrot" to the accused, and Idoai renlied himself lo iliat loiter, and that letter was the whole answc" to the choree. In efl'ccl Jloar said, "T. have nsed th-> label. 1 r!''d not k"Ov it en inlnnge-uent. ihut since it. is so 1 will dro" it." Tlr"-" v .„ r( , h.i.-i.H interviews with llr. Skerrelr at which Moar was nerfcctlv frank and kept.back nothing. T T ll<nntc'-- II". f-ker-i—H expired his MW in Mnar's bona fide?, and it was finally au'i-eed W-t\''n">i himself (Sir John Findlay) and II' 1 . ci r , -,|i n nd M''. Wil'iains. manarrer for Nottingham, that Mmv should ' nay submit tn an ivimiM'on, and wW tl'e'ca-e was brou'rhl into fnurt Ifr. Pkcrrctt was tn nniwnnce that Moar m-lH ; 'i wd faitli. '''his was agreed to by Williams, and, askrd counsel, was it f.ii v . man to man. that after Moar had riven all t 1 " 1 , information believing rent he"w"s helping to reach a settle1 r C f-ii-il . iii-oeeed'nL's. that a

against him? Counsel questioned Sir. Nottingham's motives. Moar had Leon buying Jeyes Fluid from Kcnipthorne, l'rosscr ami Co.—he bought 1(10 gallons from that firm, and he also bought from others, and the accused would show the sources of every drop of Jeyes Fluid Unit lie purchased. A dozen tins which wero oil thu premises were bought from 1). Virtuo and Co., and both Nottingham and Williams mi id that a person who saw these tins would be justified in believing that they were tins of genuine lluid, and it had been shown that these tins contained spurious lluid. These tins had been purchased by Virtue and Co. from i'airbairn, "iVriglit, and Co. some years ago. • lie referred to the l.aet that tlio employee of Fairburn, Wrfyht and Co., who had l>een called as a witness was instructed by his manager not to give evidence and also, to the fact that the witness was unable to say trom where the firm obtained their supplies. Counsel asked: "Who is at the bottom of it? Was there a company in England manufacturing spurious fluid and shipping it to New Zealand as genuine Jeyes, or was it being manufactured in New Zealand, or was it possible, owing to war conditions, the quality,of Jeyes Fluid had fallen off? At any rate this man believed lie bought the genuine fluid," remarked counsel. "He could no more manufacture Jeyes Fluid than he could manufacture a sunbeam." Sir John Findlay indicated the nature of the evidence lie proposed to call, and at the close of hi; address the Court adjourned until this morning.