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Sir Henry Berkeley - That is the point of my objection. The sole question at issue is whether as a fact these marks are so like the plaintiffs' mark as to be calculated to deceive. The ques- tion of what the intention was is irrelevant.
His Lordship-If the jury are satisfied as to similarity, the question of intention does not bear upon it. The sole question for the jury is whether deception is probable.
Mr. Slade submitted that the question of passing off, the question of intent, was absolute- ly material. He would find in all cases of the kind that the history of how the thing came to be imitated was referred to.
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THE HONGKONG WEEKLY PRESS AND
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[November 22, 1909.
any
Mr. Slade then informed the jurors that as he | in any shape or form whatsoever could not give them the total history of the other part that appeared on the plain- case he would give them bits and leave them to tiffs' trade-mark. If the jury were satisfied This honest firm, he said, on the evidence that the floral design and the guess the rest. started a rival business to Messrs. Lanman scroll were, common to all Florida water labels, Wit- and Kemp. There was a statement made in the then the charge for infringement fell,
nesses would also be called to meet the charge other case-
Sir Henry Berkeley-My friend cannot open of passing off, and they would testify that to the jury with what a witness is supposed to Florida water was always sold and made up in As far as have said in cross-examination at the criminal bottles like those before the Court.
style went, it was common to the trade to have trial.
Mr. Slade said he would call witnesses to labels like those exhibited in general get-up and · prove that the defendants had applied to register style, and the only way to distinguish between makes A and B of Florida water was to take a the "T" mark, and that the application was refused. If Counsel succeeded in pointing bottle in one's hand and see the distinguishing out to the jurors the likeness between the feature of the mark, such as the fountain or Mr. Slade-A man may be guilty of infringe-bottles, and if it was possible that one could troubadour in the plaintiffs' and the two girls ment although his intention is absolutely inno-be mistaken for the other, then plaintiffs in the defendants' mark. He had had to speak were entitled to the verdict. So great a re- at some length with regard to the intention of I am cent; that is the ruling in recent cases.
semblance in get-up and every particular could the defendants in what they did. But the going into the history of this mark.
Sir Henry Berkeley-If intent does not not be accidental. It was done deliberately by question of intention did not enter into this case
the defendants to improve their trade. The in the slightest degree. matter, history does not matter.
bottles were copied so that the defendants might get the trade which would otherwise go to Lanman and Kemp. Plaintiffs' mark was registered on February 15th, 1908.
Mr. Slade then quoted authorities in support of his contentions, evidence was opened and the hearing adjourned.
His Lordship-Subsequent cases show that intention is quite immaterial.
Mr. Slade I tender as evidence inter alia on that point that the defendants have deliberately copied our trademark.
Sir Henry Berkeley-What my learned friend is attempting to open is called fraud. It has been laid down that if a charge of fraud is made at a trial, it shall be put forward clearly on the proceedings.
His Lordship-It is not a case, of fraud. Mr. Slade Of fraudulent dealings. It is a fraud from beginning to end.
Sir Henry Berkeley -My friend is opening a new case of fraud. If there is one thing the Courts are particular and exact with respect to, it is that no man shall be called upon to answer a charge of fraud unless the allegations are made specifically on the pleadings.
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His Lordship (to Mr. Slade) Supposing you were to establish a similarity to the satisfaction of the jury, how does that carry you any further ?
Mr. Slade-It carries me a great deal further. A man in the trade gets a close imitation of the plaintiffs' mark. Why? Because he hopes to sell more goods by it.
His Lordship said he would charge the jury with reference to the question of intent, and asked Mr. Slade to proceed.
Mr. Slade stated that when there was an old established business selling Florida water under a particular mark, in a particular shaped bottle, and with labels put on in a particular way, it was not fair to imitate that style, and the law said it was unlawful. But this new and honest firm, this upright Chinese firm, sold their Florida water in this bottle (produced).
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Sir Henry Berkeley again objected. His friend ought not to prejudice the jury by sug- gesting fraud when he did not plead it.
Mr. Slade I said this honest and upright Chinese firm, in starting a new business, pro- ceeded with a bottle which very much resembled ours. I am entitled to open with what I am going to prove to the jury.
Sir Henry Berkeley-This is simply flying in the face of the ruling of the Court. The Court has ruled that it (the bottle Mr. Slade again produced) is irrelevant.
His Lordship-I don't think that so far as the fraud question is concerned you are entitled to make any use of it. I shall have to direct the jury that they have to consider the other mark.
Mr. Slade-I respectfully insist on my right If to open with the evidence I propose to call. your Lordship rules that this bottle must not be shown to the jury, then there is an end of it. But I want a definite ruling on it.
Hi Lordship That reopens the whole question.
Mr. Slade-If your Lordship will say I am not to refer to the question of user I will put an end to it.
His Lordship ruled that user was not material. Sir Henty Berkeley wished the bottle, which his Lordship had disallowed as an exhibit, to be removed from the table, but Mr. Slade declined
to remove it.
Sir Henry Berkeley-I submit my friend is not bowing with respect to your Lordship's ruling.
Mr. Slade-I obey his Lordship's ruling absolutely.
Sir Henry Berkeley-Then the bottle ought to be removed from the table.
Tuesday, 16th November.
Sir Henry Berkeley, in opening the defence, said that when the defendants started in business
His Lordship-I.am not prepared to say that intention may not be an important..
stated during the element in the case. argument that it was not absolutely neces
establish intention; still, it is sary to
jury to consider what the quite open to thei intention of the defendants was. If there was evidence to show that they intended to deceive by the use of a mark which bore a strong similarity to the plaintiffs'; that would be evidence to be considered.
Sir Henry Berkeley-That is so, if the jury were satisfied that a man intended to copy another man's label in order to make it so resemble as to deceive. But if they are satisfied that as a fact, notwithstanding any intention on his part, there was no resemblance calculated : to deceive, then the intention would be worth nothing.
His Lordship The intention would fail. Sir Henry Berkeley stated that whatever the intention may have been, if the jurors looked at the two marks they would see that they were not so similar as to be calculated to deceive any person with any intelligence, however unwary he may have been. That would be the case for the defence. But as the question of intention had come up he would offer evidence which would destroy the supposed intention. He would prove through witnesses that the defendants asked that their name should be put on their bottles clearly, plainly and distinctly. What really would determine the verdict of the jurors in this action was the fact as to whether the two bottles were so alike as to be calculated to deceive people into the buying of one for the other:
they bought a small stock of Florida water from a firm in Canton which had stopped business. Long before July, 1906, that stock of labels and Florida water was sold, and for some time afterwards the defendants sold Florida water. with only a red label on the bottle. The man who designed the label complained of was told to put two girls in the middle, and he was left to design the rest as he liked. They produced the one complained of. When the defendants got that design the plaintiffs were not registered in Hongkong, and they had no register for two years afterwards, so they cannot possibly com- the defendants got this label they applied to the plain of any infringement in that respect. When Colonial Secretary's Office to have it registered, but the plaintiffs had made application some time before. The Colonial Secretary thought the defendant's label too much resembled that of the plaintiffs, and refused to register it, but at the time the defendants made their applica- tion the plaintiffs were not on the register. the register for the His clients got on "two girls" mark only two days before the Counsel for the plaintiffs were registered. plaintiffs had made a point to the jury of the defendants' want of good faith in using a label after the Colonial Secretary said it was similar to one of the register, and that he would not
Sir Henry Berkeley, in his address to the register it. That was not a matter that would affect the defendants in the least. They might jury, asked them to remember that wreaths and not be able to have their label registered because scrolls were common to the labels of all Florida it somewhat resembled another, but they might water bottles, and unless they intended Messrs. be entitled to use it, if the Court thought it was Lanman and Kemp to have a monopoly of these not so like as to induce any person to be deceived. on their labels they must find for the defendants. The jurors were no more bound by the opinion It was clear that since 1872 all Florida water of the gentleman in the Colonial Secretary's labels were get up with wreaths and scrolls, Office than they were by the opinion of the jury therefore, there was no infringement on the who formerly acquitted the defendants. This part of the defendants. The jurors had had was simply a question of eyesight and intelli-ocular demonstration that there was not the gence. After referring to a trade-mark case in faintest similarity between the labels of which the heads of a moose and a deer were plaintiffs and defendants, and if the latter had concerned, Counsel said that a moose's head was
not infringed. the trade-mark they had not more like a deer's head than a girl was Nike a passed off their Florida water as the plaintiffs.. fountain or than a butterfly was like a flag. Plaintiffs had raked Hongkong with a small Who," Sir Henry asked, "in his sober senses tooth comb to get someone to come forward to could mistake the dragon flag of China and the show they had been deceived, but without house flag of Kwong Sang for a butterfly ?"
The hearing was adjourned.
Wednesday, 17th November.
The hearing was adjourned.
success.
Thursday, 18th November.
to
Mr. Slade referred to the similarity in get- up and colouring of the labels of plaintiffs and defendants, and remarked that defendants must have had it in mind that it would be a good Sir Henry Berkeley, continuing his address for the defence, said he intended to call witnesses thing for their firm to have a mark similar to
and Kemp's. With regard Lanman to testify to the fact that, practically speaking, all plaintiffs "I" mark the speaker put it to the Florida water labels bore upon them a floral design jury that not only was it given to the engraver of some sort or other. That evidence would be
for the purpose of following the size, but prob directed to meet the case of the alleged infringe-ably, also, in order that he might follow the ment of the plaintiffs' trade-mark, because, as he design in the label he was preparing, had submitted, the only point on which they could be said to infringe existed in the fact that the defendants and the plaintiffs each had on their respective labels floral designs and a scroll. They had not used anything resembling
His Lordship, in summing up to the jury. referred at length to the evidence and the law in the case. He said there appeared to be no direct evidence on the part of the plaintiffs of