v. Shakespear (b), and The Linoleum Manufacturing Co. v. Nairn (c), are the leading authorities on this head. In the former case, the plaintiffs were manufacturers of sewing machines made according to an expired patent, and in the manufacture, therefore, they had no monopoly. The defendant advertised himself as the "agent for the sale of the Wheeler-Wilson machine" in Birmingham, although he was not the plaintiffs' agent, and was not selling machines made by them. He alleged that his advertisement meant only that he sold the machines. The Court, while restraining him from advertising himself as agent, refused to restrain him from describing the machines he sold as Wheeler and Wilson's. It was not, said James, V.-C., the name of the makers but of the thing itself, and the monopoly under the expired patent could not be prolonged by granting a monopoly in the name. new article Case. In The Linoleum Case (d), the plaintiffs used a trade- The name mark containing the word Linoleum for a floor-cloth which given to a had been first manufactured and sold by them under a cannot be patent, and they unsuccessfully endeavoured to restrain monopolised. the defendants from selling similar cloth as Linoleum Floor The Linoleum Cloth after the patent had expired. Fry, J. found as a fact that the word Linoleum, which was taken by the defendants, was not an essential part of the plaintiffs' trade-mark, but was descriptive only. It was, he said, the name of the thing, and the defendants were not bound to invent a new name for it if they made it. The name, he added (e), "only secondarily means the manufacture of the plaintiffs', and has that meaning only so long as the plaintiffs are the sole manufacturers. In my opinion, it would be extremely difficult for a person who has been, by right of some monopoly, the sole manufacturer of a new article, and has given a new name to the new article, meaning that (5 39 L. J. Ch. 36 (1870), James, V.-C. (e) 7 C. D. 834 (1878), Fry, J. 4, The Linoleum Co. v. Nairn, 7 C. D. 834 (1878); cf. Young v. Macrae, 9 Jur. N.s. 332 (1862), (e) Page 837. Original. Name of the place of origin. "new article and nothing more, to claim that the name is to be attributed to his manufacture alone after his competitors are at liberty to make the same article. It is admitted that no such case has occurred, and I believe it could not occur" (ƒ). The first introducer of goods which have come to be known by the name which he applied to them, so that that name has been lost to him as a distinctive mark, has, in some cases, been allowed to distinguish his goods by the name with the prefix original. Thus, in the Reading Sauce Case (g), Romilly, M.R., said, "where there are a great number of persons who produce the same article, original means that the article so called is that made by the first inventor. That is the meaning of original, which the Court of Chancery has always recognized." The name of the place of origin of the goods would, on the same principles, in general, be bad as a trade-mark, for any importer from the same place would be at liberty to use it; but where the name has acquired a secondary meaning, identifying the goods upon which it appears with a particular trader, the trader has frequently been protected against fraudulent imitators. Even in cases where this secondary meaning has been acquired, however, according to the rules adopted in analogous cases of a trader using his own name, although it closely resembles, or is identical with, that of an earlier established and competing trader (h), the Courts would not interfere to restrain a second trader honestly using the name in question merely for the purpose of indicating the place of origin of his goods, although they might require him to use it in the less deceptive of two or more alternative forms (i). At (f) See below, p. 201. (g) Cocks v. Chandlers, L. R. 11 Eq. p. 447 (1871); see also Browne v. Freeman (1), 12 W. R. 305 (1864); S. C. (2), W. N. (1878), 178, (Chlorodyne); Lazenby v. White, 40 L. J. Ch. 576; 41 L. J. Ch. 354 (1870), (Harvey's sauce). (h) See Burgess v. Burgess, and Turton v. Turton, below, pp. 421, 424. (i) There are dicta in the Stone Ales Case, in the House of Lords, which suggest that a practical monopoly might be acquired of the use of the name of a place where goods are manufactured; but they any rate, there is no reported authority in favour of such interference. In McAndrew v. Bassett (k) the word Anatolia stamped Anatolia liquorice. upon liquorice was held to be a good trade-mark. The plaintiff made his goods of a mixture of juices obtained partly from Spain and partly from the district of Andoli, and he chose Anatolia, which was one form of the latter name, as his mark. The defendant, having seen the plaintiff's mark in the market, caused it to be applied to goods of his own made solely from Spanish juice. If the name had had a known meaning indicating the origin of the goods it is clear that the plaintiff could not have monopolised it, but as it had, when he assumed it, and at the time of the infringement, no such meaning, the Court decided that it was a good trade-mark. "It is not," said Wood, V.-C., "like the case . . . of there being some district from which a well-known wine, such as Burgundy, is imported, and the first importer calls it Burgundy; although he may have stamped Burgundy on his corks for twenty years, he could not prevent anybody else from calling a wine produced in Burgundy by the name of the place from which it was imported.” Provezende. In Seiro v. Provezende (1) part of the plaintiff's trade- Seixo v. marks consisted of the word Seixo, which was his own name, and also the name of the estate from which the wine, in connection with which the mark was used, came. The defendants adopted the same word in their trademark, and they alleged that their wine came from an estate adjoining the plaintiff's and also known as Seixo. It appeared that the produce of the defendants' estate was far less in quantity than that of the plaintiff, that the plaintiff's wine was well known by his trade-mark, and that the district in which both estates were situate was st, it is submitted, be read by reference to the facts of the case, which was one of deliberate fraud. Thompson v. Montgomery, (1891) A. C. 217: 8 R. P. C. 365; above, p. 29. (k) 4 De G. J. & S. 380; 33 L. J. Ch. 561 (1864), Wood, V.-C., and Westbury, L.C. (4) L. R. 1 Ch. 192 (1865). Glenfield starch. known as "Sitio do Seixo," meaning "the stony country." Wood, V.-C., granted an injunction to restrain the defendants from using the word in question without clearly distinguishing the wines they sold under it from the wines of the plaintiff (m), and, on appeal, Cranworth, L.C., upheld this decision. "Assuming the truth of what is contended for by the defendants," the Lord Chancellor said (n), "that is, that parts of their vineyards are known by the name Seixo, that does not justify them in adopting a device or brand the probable effect of which is to lead the public when purchasing their wine to suppose that they are purchasing wine produced from the vineyards, not of the defendants, but of the plaintiffs." In the Glenfield Starch Case (o), the defendant was restrained from using the word Glenfield on the labels attached to starch made by him, and from calling such starch Glenfield Starch, although his starch was actually made, and that of the plaintiffs was not made, at the place of that name. The plaintiffs had formerly manufactured their goods at Glenfield, and had adopted the name Glenfield Starch, and a label comprising the words to describe them, and the defendant, as the House of Lords found, set up a factory at Glenfield-an open place with a few cottages for the express purpose of securing the name, and of profiting by the plaintiffs' reputation. He called his starch Royal Palace Starch, but placed the name Glenfield in large letters on his labels, and his agents sold his goods as Glenfield Starch. "I take it to be clear from the evidence," Lord Westbury said (p), "that, long antecedently to the operations of the respondent, the word Glenfield had acquired a secondary signification or meaning in connection with a particular manufacture-in short, it had become the trade denomination of the starch made by the appellants. It (m) See form of injunction, L. R. (0) Wotherspoon v. Currie, 42 L. J. Ch. 130; James, L.J., L. R. 5 H. L. 508 (1872). (p) Page 521. "was wholly taken out of its ordinary meaning, and in connection with starch had acquired that peculiar secondary signification to which I have referred. The word Glenfield, therefore, as a denomination of starch, had become the property of the appellants.' This decision has been very recently followed and approved by the House of Lords in the Stone Ales Case (q), which was a very similar case. Geographical names are expressly excepted from the list of essential particulars for registered trade-marks contained in the present Act (r). ment of the So a mere advertisement or description of the goods Advertiseconcerned, or of some quality which they possess, is not a goods not a trade-mark. And on this ground Lord Westbury based trade-mark. his judgment, in the House of Lords, in the Leather Cloth Case (8). Case. The trade-mark of the plaintiffs in that case consisted of Leather Cloth a circle formed by the words Crocketts' International Leather Cloth Company, Newark, N. Y., U. S. A., West Ham, England, inside of which in the upper half was an eagle, with the word Excelsior over it, and the words Crocketts & Co., tanned leather cloth below it, and in the lower half the words Patented, January 24, 56, I. R. and C. P. Crockett, Manufacturers, 12 yards. The defendants had a trademark containing features similar to some of these. Wood, V.-C., granted an injunction (t), but on appeal (u) this was rescinded by Lord Westbury on the ground that the plaintiffs' trade-mark contained material misrepresentations which disentitled them to relief. When the case came before him again, in the House of Lords, however, Montgomery v. Thompson, (1891) A. C. p. 217; 8 R. P. C. 361; above, p. 29; cf. also Huntley & Palmer v. The Reading Biscuit Co., 10 R. P. C. 277 (1893), Chitty, J. (Reading biscuits). (r) Act of 1888, s. 10 (1) (e), below, p. 156, see also, p. 147. (s) The Leather Cloth Co. v. The American Leather Cloth Co., 11 H. L. C. 523; 35 L. J. Ch. 53 (1865). (t) 1 H. & M. 271; 32 L. J. Ch. 721. (u) 4 De G. J. & S. 137; 33 L. J. Ch. 199. |