SUPREME COURT

Dominion, Volume 13, Issue 44, 15 November 1919, Page 3

SUPREME COURT

TRADE MARKS CASE MOAR FOUND NOT. GUILTY The hearing of the case brought against J)aniel- Moar, trading as the Dominion, (Proprietary, Compsuy, who was, charged With falsely applying to goods a certain mark resembling , the registered trado ' mark' of Jeyes Sanitary Compound Company, manufacturing chemists, with intent thereby to defraud, was continued in. the Supremo Court yesterday before His Honour Mr. Justice Hosking. V Mr. I'. S. K. Macasse.v, of the Crown Law Office, appeared for the Crown, and • Sir John Pindlay, lOC., with him Mr; Lv .Edwards, for tho prisoner. Mr. G:/.J.. H. liell was foreman of tho -jury. " ' . • , Tho case for tho defence, was opened tho previous, day .by tho address of Sir John Find lay. Tho accused, Daniel Moar, in giving evidence 6aid that seven -or eight years ago lie was a seaman, .then he worked on the wharf and later worked for the Westport-Coal Company, as foreman of a hulk. A friend brought under his no-.-tice th'is Dominion Proprietary Co., and after somo negotiations he .bought - the - business, which, was then located at 20 Elizabeth Street. In April_ last he changed tho location to 182 Vivian Street, where. 110 rented two rooms at £2 per calendar month. In April, 1919, ho had a partner, who was still with him. Ho paid J>225 for the business, which war run by a man named Lilly. Ho took f.voc'liO gallons of J eyes- Fluid, which lie, understood was ; genuine and which lie believed to. be genuine. He found on the premises labels used "'by. tho original-proprietor of the business, and also the labels 'used by Lilly.-from whom . 110-bought-the business. Ho, used tho latter .label., He took oyer , about a thousand of the labels and the block "from 'which" the-labels-Mver'e- printed.After there'.was trouble in- March last and-Mr. Nottingham, took all the labels he did not use tlio "Nljrse" label, - : ! - it after consulting counsel he used v- " .".Mo'ar" label, which was quite'different , ' from' tlio '."Nurse" label. He had-hever ■used the -'-'Rising Sun." • laWl, which ho ■ was (twiire'-ivaS the trade mark of Jeyes. .Eliiid.. He had- never • attempted to manufacture the fluid. He .had no one .-'behind him supplying him with; the fluid. He had 110 other-premises for-the bottling of the. fluid. .' Prom the -time ho. had. ibeen -in business lie purchased thobulk'of his supplies of, Jeyes.Fluid from Kempthorne, Prosser and' Co. in five-gal-lon tins. Since the end of May to November 10 lie had purchased, about 400 , gallons from that firm. The total quantity of Jeyes Fluid ho bottled from tho "time lie started business .until .September 8 was about' 561 gallons. The only other supply of fluid that lie had was twelve one-gallon tins which ho purchased from D. W. Virtue nnd Co. on April 12, 1919. He did sell a tin. (one. -gallon) to .Tomlinson, house-ctaaueivi' Thfl Niisolu\tinS'' wero on tlio premises on September; B when the police searched, the He bought a small.quantity of fluid from the Friendly Societies' Dispensary, Courtenay Place. Ho'bought six eight-ounce bottles. A' messenger _ from Fairbairn, •Wright and Co- camo-in and ( asked for;! a dozen bottles of: Jeyes Fluid as samples. This firm was' in the habit of buying from him, but witness went out anil bought the six bottles from the dispensary. 'These.bottles had the "Nurse ■ label. He filled the bottles with which' he supplied Fairbairn. Wright and Co. with tho fluid he obtained from the dispensary. Ho filled twelve,'small bottles nnd put his own label on them.. .He to- • tained a whole bottle of the six purchased from the Friendly Societies' Dispensarv. The bottle produced; ~ which was alleged to have.been obtained from, witness, was not : bottled by Mm.' He believed he obtained some fluid from Sharland an(l C 0 .% early in . 1918. but he was not quite .sui'e of that. Except those he had mentioned, he had. not purchased Jeyes Fluid from anyone else. Several drums of. the fluid purchased by witness from Kempthorne, Prosser and Co. wero produced, and it was de-' monstrated 'that the drums were different in construction, with different stencil brands, and the Jeyes seal' not the same as tho seal'alleged to ba genuine. Witness said he got both the smooth seal nnd the alleged genuine'seal drums from the same firm- ' . ' • Mr. Nottingham,, the agent for Jeyes, admitted that the drums-were all genuine Jeyes and had come from Jeyes company. Tliey all boro tho mark "A.C.N, in diamond." ■"' . Witness, continuing his evidence, said that he-had bottled from -the tins with the smooth : . seal prior to ' the police, search.' and they ■ must have got some of those bottles. • Except for about 37 gallons bought 'from other sources all his supplies of .iejes Fluid were obtained from .Kempthorne, Prosser and' Co., and the fluid was bottlert just as he received it without nny addition. or sub-_ traction. His business was hot merelyx bottling Jeyes. There were other lines, and thes.o would .bo greater, .than the business lie did in Jeyes.

Cross-examined, witness said that he never purchased "Creozeen" from anyone in hi 9 life, and Ee\er had a crop of, that fluid on' his premises to his knowledge; 1 He had bought from Mr. Cronin sheep, dip, Lysol/ and a fluid whicih had no name, aiid which he bottled as "Colonial Fluid." He never asked. Mr. Cronin not. to cull the fluid "Creozeen." Cronin invoiced the stuff as-"fluid." • • • Re-examined, witness said that in thirteen months he bottled about 100 gallons of Jeves Fluid, and ho only bottled it when- lie eot an order.." ' ■' Ilobert M. Virtuo, a member of the firm of'D. A r irtue and Co.,' said his firm sold Jeves Fluid in a email 'way. Hti Temembercd a sale of twelve on'e ; gallon tins sold by .th' 6 firm.to'Moar M April Inst. The tins were .bought -by his firm from Fairbairh; Wright 'and Co. on February !), ISK." ■' Tho stuff- was a long time in stock, He was under ,tho impression that the competing disinfectants liiid affected the sale of Jeyts Fliiid. He had complaints of the quality of Jeycs Fluid. lie had a complaint from a baker named Brown,., of Taylor and Brown. Island Bay. William Smith, assistant to Moar, and n partner of his since April,-1918, also gave evidence. . Mr. Maehssey was given permission to call rebutting evidence, • . James Joseph Cronin, who said be was a manufacturer/ statetf'thiit he had supplied, the accused with a fluid known aa "Creozeen." and also sold it to his pre-decessors-in the-'business, but he could not sav whether, it 'was described as "Creozeen" to Them on the invoices. It was entered on 1 the' invoices as "fluid" to Moar. . ■ :.-

This concluded tho .case, mid Sir John Finalay, in hisnddress to the jury, said that if wbc-n. filling tho,bottles' tho ac-. cused honc-stly believed that he was fillins them with genuine .1 eyes I'liiid that would be « sufficient answer. No evidence of dishoiusty or fraud had . been disclosed. Tho accused had been frank and. honest The accuscd hart been charged .with applying a label calculated to deceive, and, secondly, that ho was applying tliis infringing label to a sDurious Jeyes Fluid, and selling tho Banie. What was. the attitude of the .accused? Did,he.get rid of his stock, or his bottles or his labels? ?«o. He.. went- with the speaker (Sir John ■ Findlay) to Mr. Skerrett's .office, and .olVerod to give up what -ho had. ano', as a matter of' fact, he cave, up 15,00(1 labels, the label block, and a dozen filled bottles to Mr. Nottingham. The accuscd admitted that ho had filled the dozen and if he knew ho was handling spurious fluid would ho have oone so? When in. Mr. Skerrett's offico the accused disclosed the sources of his supply, and named tho firms from whom lie purchased his sup- ■ plies of Jeyes Fluid. After a retirement of nearly two hours tho iury returned and gave a verdict of not guilty. His Jloncur complimented the jurymen oil the interest they had displayed in the case. PRISONERS FOR SENTENCE His Honour Mr. Justice Hosking will fliis morning pass sentence on the following prisoner/:— Allrin lleutscn". theft from a fl-":pll ; * ,r r. breaking and entering, and thefo by day (t«'d charges;. Leonard. Guy Walls, making a false declaration under thq Marriage Act. August Herbert Mnlnnty; obtaining sev<®al cases of whisky by false pretences. William Joseph-'Mayer,, forgery and 6eft