TRADE MARKS

Hokitika Guardian, 9 July 1921, Page 1

TRADE MARKS

APPEAL COURT JUDGMENT.

WELLINGTON, July 7

The Court of Appeal delivered judgment yesterday in a case arising out of similar trade marks for brands of hosiery supplied by English and Canadian manufacturers. There were present: Their Honours Mr Justice Sim (Acting-Chief Justice), Mr Justice Hosking, Mr Justice Stringer, and Air Justice Salmond.

Messrs T. and R. Morley (England) appealed against the judgment of His Honour the Chief Justice in regard to an application by an incorporated Canadian company, Mercury Mills, Ltd., to register a trade-mark which iliey bad already put into use, in respect of the same class of goods as that in which tlie appellants had a trade-mark registered in the Dominion. This application the appellants successfully opposed before the Registrar, but >he Supreme Court reversed his derision. and ordered him to proceed with the registration. The other matter is an action brought by the appellants to restrain an incorporated New Zealand company. Mucky, Logan, Caldwell, Limited, from infringing tho appellant’s trade-mark, by selling goods, not being the appellants’ goods, under the Canadian company’s trade-mark. Li ibis case, the Supreme Court held that the appellants were not entitled to any relief. The appeal was against both t hese judgments. The ground on which each judgment proceeded was the same —namely, that the Canadian company' trade-mark did not so nearly resemble the appellants’ mark as to he calculated to deceive.

The court arrived at the conclusion that the appellants ought to succeed, on the ground that it did so resemble the appellants’ mark as to be calculated to deceive. Registration of the Canadian company’s trade-mark must he refused, and the appeal against the decision of the court below, reversing the Registrar, be allowed.

With regard to the action for infringement, the appellants, said the judgment, were a very old-established English firm, and the registered trademark for hosiery consisted of a small wheel, with a comparatively large wing projecting from eaeli side, known as the “Flying Wheel” or “Winged Wheel” brand.

The court expressed the opinion that the judgments of the court below should ho reversed, and that the apliellants were entitled to an injunction in the action.

With regard to costs, the appellants are to have one set of costs on the highest scale, divided between the two matters, so that the Canadian company pay one-half, and Mackv, Logan, Caldwell, Ltd., the other half to the appellants.

Air Blair, with him Air Morrison, appeared for the appellants, and Air Jolipstone (Auckland) fob the respon dents.