No. 9. FORMS OF ORDERS IN TRADE-MARK CASES 653 653 654 654 654 655 7. Massam v. Thorley (Thorley's Cattle Food) 8. Hendriks v. Montagu (Universal Life Assurance Co.) 9. Read v. Richardson (Dog's Head Beer). 10. Lever v. Goodwin (Self-Washer and Sunlight Soap) 12. Apollinaris Co. v. Herrfeldt (Apollinis Water) 11. Melachrinov. The Melachrino, &c. Co. (Melachrino Cigarettes) 13. Jay v. Ladler (Lady and Bear Furs) 14. Montgomery v. Thompson (Stone Ales) ... 15. Wilkinson v. Griffith (Red Medal Polish) Injunction against use of name of plaintiff's goods; against use of trade secret. 1. MORISON V. MOAT (b), 20 L. J. Ch. 529 (1851), Turner, V.-C. Trade Secret. An injunction to restrain the defendant, his agents, servants, and workmen, from selling, or causing or procuring to be sold, under the title or designation of " Morison's Universal Medicine," any medicine made or manufactured by him, the said defendant, or by or under his order or direction; and also to restrain the defendant, his agents, servants and workmen, from making or compounding any medicines according to the secret in the said bill mentioned, and from in any manner using the secret of compounding the said medicines or any part thereof. A (a) The forms are taken from the reports cited; in some cases they give only the substance of the orders actually drawn up. For fuller forms and the formal parts of orders, see Seton, 5th ed., Vol. I., p. 534 et seq. large number of orders have been collected by Mr. Sebastian, and are printed in his book, 3rd ed., p. 510. (b) The Lords Justices required the plaintiffs to give an undertaking as to damages; 21 L. J. Ch. 248. 2. FARINA v. SILVERLOCK, 24 L. J. Ch. 632 (1855), Wood, V.-C. Trade-Mark. To restrain the defendant from printing or selling any labels Injunction similar to those in use by the plaintiff, or containing copies of against his signature, or address, or flourish, seal or stamps, or other printing or selling labels ; marks invented and used by the plaintiff, or marks merely colourably differing therefrom, intended to represent that or passing off. Eau de Cologne prepared by other parties was Eau de Cologne prepared by the plaintiff. 3. SEIXO v. PROVEZENDE, L. R. 1 Ch. 194 (1865), Cranworth, L.C. Trade-Mark and Passing off. An injunction to restrain the defendants from affixing, or Injunction causing to be affixed, to any casks of wine shipped to their against use of orders, the brand or mark of a crown and the word Seixo, or trade-mark; any other combination of marks or words so contrived, as by colourable imitation or otherwise, to represent the marks or brands of the plaintiff, and from employing any marks or words which should be so contrived as to represent, or induce the belief, that such wines were Crown Seixo, or the produce of the Quinta do Seixo, or otherwise using the word Seixo or of tradewithout clearly distinguishing the same from the wines name of the produced by the Quinta do Seixo. plaintiff's goods. 4. WOTHERSPOON v. CURRIE, L. R. 5 H. L. p. 523 (1872). Trade-Name of Goods, Passing off. Injunction restraining the respondent, his servants and Injunction agents, from using the word " 'Glenfield" in or upon any against use labels affixed to packets of starch manufactured by or for of name; him, and from in any other way representing the starch manufactured by or for him to be "Glenfield Starch," and from selling or causing the same to be sold as "Glenfield Starch," and from doing any act or thing to induce the belief and passing that starch manufactured by or for him, the respondent, is off. "Glenfield Starch" or starch manufactured by the appellants. trade-mark. 5. FORD v. FOSTER, L. R. 7 Ch. p. 634 (1872), L.JJ. Trade-Mark. Injunction To restrain the defendants from applying the mark or title against use of "Eureka" to any shirts manufactured by them, or to any shirts sold by them, unless manufactured by the plaintiffs, and from selling any shirts already marked with the mark and title "Eureka," unless such mark or title has been applied with the sanction of the plaintiff; and from issuing any boxes or packages on which the mark or title of "Eureka" shall be applied to shirts not of the plaintiff's manufacture; and from affixing or using any label or card or other mark containing the word "Eureka" to or upon any shirts not of the plaintiff's manufacture (there was also an order for an account limited to the period since the filing of the bill). Injunction mark; or any similar mark without 6. ORR-EWING & Co. v. JOHNSTON & Co., 13 C. D. p. 450 (1880), Fry, J., and C. A. (c). Trade-Mark and Trade-Name. To restrain the defendants, Robert Johnston & Co., their against use of servants, workmen, and agents, from affixing or causing to an infringing be affixed to any Turkey red yarn not dyed by the plaintiffs, Archibald Orr-Ewing & Co., the ticket marked B, and from using two elephants on any tickets used on Turkey red yarn, without clearly distinguishing such tickets from the plaintiffs' ticket marked A, and from employing any mark or words which would be calculated to cause any Turkey red yarn not dyed by the plaintiffs to be known in Bombay as "Bhé Hathi" yarn, or to (c) (or so as to) represent or induce the belief that any of the said yarn was dyed by the plaintiffs; with an order for an account of profits and costs. distinguishing, &c. Injunction against passing off; 7. MASSAM V. THORLEY'S CATTLE FOOD COMPANY, 14 C. D. their An injunction to restrain the defendant company, servants, workmen, agents and travellers, and representatives respectively, from selling, exporting, or shipping, or causing or procuring, or allowing to be sold, shipped, or exported, and from in any manner representing, or causing, or procuring to be represented, any goods manufactured by the defendant (e) The words in italics were struck out by the House of Lords. 7 App. Cas. p. 234. defendants' company as the manufacture or goods of the late Joseph Thorley, or of the plaintiffs, his trustees and successors in business; and also from in any manner representing, or against causing, or procuring to be represented, or doing anything pretence that which shall lead to the belief that the defendant company business is the have been or are carrying on the business of the late Joseph plaintiff's; Thorley, or are the successors in business of the late Joseph Thorley; and also from affixing or permitting, or causing to be affixed to any goods or articles manufactured or bought, or procured, or sold, or shipped, or exported by the defendant company, or otherwise using or employing, or permitting to against be used or employed, any labels, wrappers, or marks used by imitation of the late Joseph Thorley and the plaintiffs, his trustees and marks and successors in business, or so contrived and prepared as to get-up. represent or lead to the belief that the goods or articles manufactured, or sold, or shipped, or exported by the defendant company are the goods or manufacture of the late Joseph Thorley, or of the plaintiffs; and also from employing, using, Circulars and or circulating, or causing to be employed, used, or circulated, advertiseany circulars, pamphlets, notices, or advertisements of the late ment. Joseph Thorley or of the plaintiffs, or which shall in any manner represent or lead to the belief that the defendant company have been or are carrying on the business of the late Joseph Thorley, or that they are his successors in business. (The Court refused to prohibit the defendants using the name Thorley in a way not calculated to mislead the public.) 8. HENDRIKS v. MONTAGU, 17 C. D. p. 638 (1881), C. A. Company's Trade-Name. "An injunction to restrain the defendants from applying to Injunction the Registrar of Joint Stock Companies in England for regis- against tration, under the Companies Acts, of any company to be incor- registration of company porated under the name of the Universe Life Assurance with name Association, or any other name likely to mislead or deceive like plaintiff's the public into the belief that the company, being incorporated name; as aforesaid, is the same as the Universal Life Assurance Society, from issuing or publishing advertisements, circulars, against or prospectuses, representing that a company is to be incor- advertising porated pursuant to the Companies Act, 1862, under the name company with of the Universe Life Assurance Association, Limited, or any plaintiff's other such name as aforesaid; and from carrying on or com- name; mencing any business under the name of the Universe Life or carrying Assurance Association, Limited, or any such other name as on business aforesaid." name like under such name. Interim injunction 9. READ v. RICHARDSON, 45 L. T. N. S. p. 60 (1881), C. A. Trade-Mark. Undertaking The plaintiffs by their counsel undertaking to abide by any as to damages. order this Court may make as to damages, in case this Court shall hereafter be of opinion that the defendants have sustained any by reason of this order which the plaintiffs ought to pay, this Court doth order that the defendants, E. Richardson & Co., their servants and agents, be restrained from using the against use of figure of a dog's head upon any labels, tickets, or wrappers trade-marks on goods for affixed or applied to bottles of beer or stout sold for exportaexportation. tion, or exported by the defendants to any of the Australian colonies or New Zealand, and from selling for exportation, or exporting, any bottles of beer or stout having affixed or applied thereto any such label, ticket, or wrapper, until judgment in this action, or further order: and it is ordered that the plaintiffs' costs of this motion be their costs in the action. Costs. Trade-mark action dismissed. Injunction particular wrapper; against passing off. Account. 10. LEVER v. GOODWIN, 4 R. P. C. p. 503 (1886), Trade-Mark and Passing off. "This Court doth order that this action, so far as the same claims protection in respect of the trade-mark, No. 39,714, stand dismissed out of the said Court. And it is ordered, that the defendants, Goodwin Bros., their agents and servants, against use of be restrained from selling, offering for sale, or disposing of any soap, not being manufactured for or by the plaintiffs, in the wrapper, or of the form of any one of the three exhibits admitted in this action to have been issued by the defendants, and marked J.S.S.1, J.S.S.4, and B.B.1, or in any wrapper or in any form calculated or intended to pass off, or to enable others to pass off, such soap as or for the goods of the plaintiffs. And it is ordered that the following account be taken, that is to say, an account of the profits made by the defendants in selling or disposing of soap, made by or for the defendants, in any wrapper such as that contained in the exhibits marked J.S.S.1, J.S.S.4, and B.B.1, and in the form of those exhibits. And it is ordered that the defendants, Goodwin Bros., do within fourteen days after the date of the chief clerk's certificate, to be made pursuant to this order, pay to the plaintiffs, Lever & Co., the amount which, upon taking such account, shall be certified to be payable by the defendants to the plaintiffs. And it is ordered that it be referred to the taxing master to tax the costs of the plaintiffs of this action, up to and including the trial, except so far as Payment of amount found due. Costs. |