CIVIL SITTINGS.

Otago Witness, Issue 2813, 12 February 1908, Page 38

CIVIL SITTINGS.

Monday, February 10. {Before His Honour Mr Justice Williims.'i Claim. £1000 damage*. Mr H. D. Bedford, with Mr L. T. Barnard, appeared for the plaintiff, Wi'liam Joseph Roebuck. &f Dtmedm, mechanical engineer: Mr J. H. Hoiking. X.C.. with Mr P. G-. AVhite. for the defendant, John Crow M'Gecrge. of Dunedm. The case arose out of a collision between It motor-car and a bicycle in Princess street last July. It was alleged that the defendant caused plaintiff such injuries by running over him and his bicycle that he was permaneni'y disabled, and had to give up carrying on his trade. Defendant admitted that the wheel of his csr caught the wheel of the .bicycle. b:it denied negligence, or that plaintiff was run over by the car and seriously injured Defendant also denied that his car vras travelling at an excessive speed. anc> alleged contributory negligence on plaintiff's part in not gettiag out of the way when warned that defendant was about to pass Mm. Defendant a'.legec. that plaintiff, by suddenly sl«ckening his speed, brought about the accident. Mr, Hosking informed the court that the parties had agreed to a settlement, and did not propose to trouble the court. HAVANA COMMERCIAL CO. V. MENDELSOHN AKD SON. Motion lor judgment. Mr J. H. Hosking. K.C., with Mr C. G. I *vhite. appeared for the plaintiffs, the Havana Commercial Co.. of >"ew York, United States of America, manufacturers and vendors of cigaTs ; Mr J. C Stephens, for the defendants. Mendelsohn and Son, of Dunedin, importers and vendors of cigars. Mt Hosking K.C. ■ This action, may it please your Honor, comes before the court on a motion for judgment The object of the action was to vindicate one of the plam*ltts registered trade-marks. The plaintiffs b»ve several trade-marks, which they registered in New Zealand, and the one in th-9 case was called "La Flor de Murias." for which they are registered, and which entitles them to use the words " La Flor de Murias " or any modification thereof used in conjunction with any other word or combination of wards or any pictorial representation or derice or illustration whatsoever. The infringement in this case with which the defendairts were ch*rged was that of indenting certain cigars m boxes which wer# ' printed with the words " La Fior de Muria« ' In conjnnotica with the word " Rothschild " "P° n , * hese boxes were stamped the words ' Made in Germany." and it must have been thought that by co stamping the words and showing a different place of origin from that of the real cigar the miriEgeaent of the trade-mark was oided However the defendants have « ye I a<m«ed I \enture to say. to not -v^ast the action but to submit {;> jndgHis Honor Ju-t « ~> Mt Hoskinp XC We do not a'k fcr damages or an account a~ j~ u-val a theae cases because ye *<.cn>t Mi Men/el- I

sohn's word lhat there was only one instance in which an indenting was made bj- him. Therefore, I shall move (1) That a w-nt of injunction be issued out of this court lestraming the defendants, their servants, and agents from infringing the registered trademark described m the statement of claim herein, ar.d from passing off cigars not manufactured by or for the plaintiffs as or for the goods of the plaintiffs and in particular lestraming the defendants from importing selling, offering for sa'.e. or disposing o f (a) cigars not manufactured by or for the plaintiffs, or sold or dealt in by them as

"La Flor de Munas ' or "Flor de Mimas" or " Munas " ; (b) cigars not manufactured by or for the plaintiffs and put up m boxes bearing the words ' Muiias or any other designation of such a nature as to represent or lead to the belief that cigais not manufactured by or for the plaintiffs or sold by the plaintiffs are contained therein. (2) That the defendants do pay to the plaintiffs as the costs of this action the sum of 10 guineas and the court fees, upon the giounds that the defendants have agieed to judgment id the foregoing terms.

Mr Stephens The facts as stated by my friend a/re substantially accurate, but it should be stated on behalf of the defendants that the infringement of Hip trade-maik consisted in the indenting of ore solitary case of cigars two jears and a-ha.lf ago Th# -*•- fendants say that they were entirely unaware of the fact that the words "La Flor de Munas " formed a registered trade-mark, and that they ordered, at the lequest of a customer, one case of cigars, as I say. two years and a-half ago, and, at his Tequest also, they instructed the manufacturers to impress upon the box the words ' La Flor de Murias," thinking, as they considered probable, that that formed a fancy name that was common to the trade As my friend has said, the boxes were impressed also with the words " Made in Germany," and as the "La Flor de Murias " manufacturers carry on business in Havana, there could be no suggestion that the cigars in the boxes marked " Made m Germany " carre fiom Havana, so that the defendants considered they were not at anyrate guilty of passing off their goods as those of the plaintiffs. W hat I particularly want to say on their "behalf, and what they desire me to say on their behalf, is that they were quite innocent of any intention or design of infringing the plaintiffs' trade-mark or of passing off their goods as the company's goods. But at the same time they recognise that they have infringed the trade-mark — an innocent infringement, — and as they have no desire or intention to continue, when it is pointed out to them, they Rtibinit t-o the motion.

Mr Hosking, X C : With leference to the t-w o years and a-half I might point this out : It was only a considerable- time after the importation took plaoe that the plaintiffs discovered that these cigars were m the market They were in the hands of letailers. and it was purely by accident that they lighted upon them.

The court granted the injunction as prajed; costs £10 10s

aIA.CDOJf.VLD V lI'LAUGHIAK'

This was a case in which David John Mac Donald sued Hugh Murray M'Langhlan for .-£209 143 8d nuclei- an indemnity agreement, plaintiff being a commercial tiaveller in defendant's employ. — plaintiff did not appear, and Mr H. D. Bedford, who appeared for defendant, asked for a judgment dismissing the actirn, and cost= There -wa= a counter claim by defendant but lie would withdraw that.

His Honor dismissed the action, awarding defendant costs on the middle scale, disbuisemeuts to be fixed by the registrar.