Page
THE TRADE-MARK CASE.
M.B.K. FINED $50. SKOTT & CO. RECEIVE 300 BAGS
OF
FLOUR AS COMPENSATION.
MONDAY, THE HONGKONG DAILY PRESS,
upon his clients and asked to see the market for it in Hongkong and the out 'mark. He did not mention anything lying ports under the name the "Steamer" about the four or about exporting it.brand, which his clients had been work The representative was told that the marking on and which, owing to circumstances was registered, He left the office and over which they had no control, they His impression was that returned two days later to suggest a set could not use.
prove mens rea
to ༥༩༨༤
NEPTEMBER 290, I»lM
Mr. Davidson remarked that he hope t that the Magistrate was not under the impression that he was obliged to forfeit the flour. It was not so. The offener was technical one, and forfeiture was a very serinus thing indeed. The Magistrata
Mr. Davidson: No, I said your Worth case because he had only fined the d ship must prove mens res.
retki
}
fendants 30 although the maximum fizet 'was: $300.
i
Mr. Lindsell: The maximum ne is R100:
At the Magistracy, on Saturday, the tletsent. That was before the matter was his friend stated the complainant ad to himself bad not taken a serious view lot
was conclud input into the hands of defendants' lawyers heuring et the case
He terms with regard to a settlement. which Mossary H. Skett & Co proveeded The representative was offered certain against the Mitsui Bassan Kaisha, for agered, and said they only wanted con- In the that the latter, on August 15th, at KowGrmation from his manager.
yone loon, did put in their vessel for sale or
the manager had meantime.
Messrs. Hastings & Hastings the purpose of trade 9.041 sacks of four
which a false imitation of complain and being advised that he had com- not settle, offence, did བླུ ant's Steamer" trade-mark Had been mitted
although previously the representative applied.
was of opinion that an offence had been committed. Mi. Davidson then can to see him (Mr. Johnson) and told him that the flour had been brought here for ex- pertation to Bangkok and that bis do
The flour is valued at $7,000 and was seited by Magers, E. Skott & Co. and plaved in the Kowloon Godawns..
Mr. Bulmer Johnson prosecuted and Mr. F. Davidson append for the
defence.
::
At the fast hearing Mr. Davidson rgued that if his clients were guilty it way only on technical point, because the absence of Mosari, Skott's trade mark From the local roarket for over seven years naturally fod, one cu believe that it was non-existent, though that, of course was His main point was that his client had acted innocently and without any "intention to defrand. They anly imported the consignment of our in question to fulfil a contract in Bang
not his defense.
kok and not for local sale" ·
frner was that his client had acted in
nocently in the matter. He asked that the matter be dropped. No settlement was mentioned.
Mr. Davidson: I told you the whole facts.
Mr. Johnson! You did not tell the that your client had been dealing in four in the Hongkong market before, this found that out afterwards. I told you entirely disagreed with you, stated in the paper here that you said: If the flour was allowed to go our
It is
Mr. Johnson stated that, according to the authorities, it was not for him to prove RIP ILM but for defendant "to Under prove the absence of mens rra. Section of the Ordinance under which the defendant was summoned, it was clearly hid down that there was no neces- aity to prove intention to defraud any. Mr. Johnson cited many body at all. authorities on that point, and then said that there was no doubt at all that when the defendants ordered the 2.000 bags of four they knew of the mark. He had merely to satisfy the Magistrate that if the defendants knew of it they could not be held to have acted innocently,
Mr. Davidson remarked that that was not quite a fair way of stating it.
Mr. Johnson: Perhaps you will con tradict this statement, too, which appears It says: "All the in the Daily Press, information in our possession was placed at the disposal of Messrs. Dennys & Bow- les, who were perfectly aware of the exportation of four to Bangkok. That is our defence. In your opening you Mr. Davidson: E refuse to be bound said: It was admitted there were 20 sales since 1912, and that was my client's by the Daily Press.
case," In this case you were perfectly aware if the existence of the mark
custs would have been paid."
want to Ay
i
}}
On Saturday, when the bearing of the Pase was continued, Mr. Davidson said. he wished to add a few more points to
Mr Johnson: My memory is pretty his previous argument. It had occurred to him that there was a comment which god, and I think you said it. What I The question of is thi might be made on the defence to the effect
paying costs was mentioned in this Court that the arguments he had addressed un
for the first time. I rejected your cher otherwise dcted innocently almost
to drop the matter: I told you it was a meant a defence of ignorance of the law deliberate case of infringequent and my That, however, was not bis defence. They client was right. This is an excellent know the Ordinance, but had no interexample of what this Ordinance is in- tion of infringing it. His attention had tended to present». ben further drawn "te u rather interest- ing fact, namely that Messrs. Skott & Co. were in this positor-that, not have ing used their mark for seven years, they were liable to have it struck off the Regis ter. It seemed extraordinary that a company of high standing should ha liable to be proceeded against, criminal ly, and put to the expense of defending themselves for a mark which was liable to be struck off the Register at any time: If his clients had thought it worth while,
Mr. Johnson next referred to a similar
"Mr. Davidson: It was our case frcin the beginning that we did not know until June. We saw your circular-letter, and since then we have stopped importing.
Mr. Lindsell: I am satisfied that when defendants knew, they stopped further shipments.
Mr. Davidson. My mistake, I make an application that the four be not for feited, because, I submit, it is a hardship. This is more or less a technical offence..
Your worship's judgment says: I-am satisfied that defendants knew of the mark before June. There is no evidenes of that, and my statement' was not chal- fenged by the prosecution. In view of the mark not being in use, the probability in that my client's statement is true.
Mr. Lindself; I am going on the state- ment rande by a representative of the de- fendant firm in the witness box,
Mr. Dawidom. If they had challenge! it, I could have brought evidence to prove that the mark was not in use on the mar
kit.
Mr-Skott himself said they have
had no sals for 7 years. That part of
the judgment strikes me as a mistake, and may have had weight in regard to the forfeiture of the flour.
Mr, Lindsell. The orus was on jou tù prove that you did not know. You have not satisfied me that you did not knew,
Mr. Davidson: Your worship is wrong on that point. In your änding on other points you have evidence to support it. but on this point there is no evidence whatever. Our evidence was unchalleng id. Your Ending is against the weight - of the evidence,
ין
Mr. Lindsell: It is not for the prose
Mr. Johnson: But they wanted to excution to prove.
the existence of the mark.
Trade-marks" Act at Home, which had port this to Bangkok after they knew of been made to protect merchants. If a mark had been imitated it was obvious that a certain amount of damage would naturally follow. '..
Mr. Davidson replied that he did not
believe any damage had been suffered in the present instance.
Mr. Johnson Stated that he did not know whether the Magistrate wished him to go into the question of whether the mark was calculated, to deceive.. would point out that the mark was known'
infringement.
Mr Davidson" stated that his client. had ved conclusively his ignorance of the existence of the trade-mark
Continuing, Mr. Johnson stated that
Mr. Lindsell: f may not believe it. importation into one country for exporta- tion into another was no defence against Mr Davidson replied that it was rather Their whole point was band Complainant could be amply pro- The mark eculd be withdrawn. tected. It could not possibly do any harm. As regards the question of costs," in civil actions the costs naturally followed, but
It would this was a totally different case. There were no epecial circumstances. baruuseurringe of justice if costs were awarded. The mere fact of being found
granting costs,
that the defendants knew of the mark, knew that for the present his clients were effecting no sales, and deliberately in- Ordinance. The only fringed the nageence there was that they did not know they could be prevented from exporting the flour.; There was a came in which a man imported cigarettes and
as the "Steamer" mark, and his sub-sold them under a false description. H.Builty, was not a sufficiens reason fer
they could now, or at any time, have the mark removed from the Register: One other point he wished to refer to and
The mission that related to the bale of sucks.
was that any trade-mark or prosecution had examined the hole which picture-representation of a steamer was they had seized, and had found it con:viously calentated to decrive,
There tained only 19 Hacks and not 2.000 sucks
were cases in which it had been held that as had been previously stated."
if a person used a word in such a man ner that it conficted with a trade-mark which used the same word it was cal culated to deceive... Even if the defen dants had merely tried to register the word Steamship and had not used A picture of the steamer at all it would have amounted to the same thing. It was of the greatest importance, because in the present instance Messrs. Skott & Co's trade-mark, was known everywhere as the Steamer"" trade-mark.
Mr. Johnson said the fact of Messrs. Skott, Co's mark not having been on the market for seven years had no bear ihe on the case. He had stated at the conclusion of the evidence for the pro secution that, if the Court wished it, he could call any amount of dealers in American four in this Colony to show why there had been to American four imported since practically before the war. The war, of course, was the main cause, but the rms were also up against high prices That particular brand of Jour was of a very high quality, and the erst was prohibitive at the present time.
Mr. Davidson replied that it might be He mentioned the point only to show what view the Legislaturn took of these delays.
Mr. Johnson. It is not delays it is inability as everybody knows"
Mr. Lindsell remarked that he did not think the point was very relevant to the
CASA.
Mr. Johnson, continuing, said that
Mr. Davidson: We admit that our mark ought to have been registered.
X. Johnson: This mark is calculated to decrive on the face ol·it,
Mr. Lindsell: I am quite satisfied on that point
"Mr. Johnson: If your worship is satis fied I will not labour the point.
Mr. Lindse I do not want to hear Any argument on that.
Mr. Davidson: We do not deny it.. Mr. Johnson stated that the complain ants had not used the mark for some years. Mr. Scott had told the Court
Mr. Davidson had unnecessarily thrown why that was, It was principally duo
a considerable amount of mud at his to inability to get the Bour. The defen
pleaded innocence of the existence of a
Mr. Davidson, That will be $1,500-- ten times the amount.
Mr. Lindsell: What about the 1 a bag your clients wished to offer!
Mr. Davidson: A bag is worth 3. It was a sort of cumsham for the use of the mark
.
Mr. Johnson: My client has suffered. We want an order for the withdrawal and obliteration of the mark
Mr. Lindsell: Yes, my order stands, Mr. Davidson" asked that the order should not be put into force for some time as he wished to consider his position.
Mr, Lindselk The conviction stands. description, but was found guilty. This As regards the question of costs, 500 bags was an exactly parallel case. They knew to be handed to Mesura. Skott & Co. and the remainder to be disposed of by the of the mark and, in spite of it, they Government..... brought the flour to Hongkong and said they acted innocently because they were going to export it. It had already been admitted by the defendants that between six and eight million bags of four passed through Hongkong annually and of this total about 500,000 bags were sold locally. The Magistrate, therefore, would appreciate what it meant to have a mark registered here to make a market, for dis- posing of four in the neighbouring ports. One of his friend's other argunkints was that the defendants had acted openly, What did openly amount to in the pre- Bent case? They stated that they had Imported 20,000 bags of four in two years.. which, as the Magistrate aptly said, was It was merely a drop in the sea." obvious in the circumstances that if, a merchant, wanted to protect his trade mark he would have to employ an army of detectives for the purpose because of the all quantities dealt with. There was only one conclusion and that the defen dants had guilty knowledge..
THE JUDGMENT.
Mr. Lindsell: I will give you leave to state a case; the order not to be put in force for seven days
WARRIOR OR ROMANCER? MALAY SENT TO GAOL
Saturday. At the Magistracy, on Mohammed Kassim, the English-speaking Malay, was charged, of remand, with sterling a bicycle, and was sentenced to four weeks' hard labour.
A: the previous hearing Kassim plead ed that he was obliged to steal the bicycle and sell it as he needed money to pur chase food. He told Mr. Lindsell that the French Consul at Penang had sept Mr. Lindsell delivered the following him to France, where he served through Armistice was signed. satis the war. When the
instead
of being repatriated to Penang He had been in the Colony for five months and had not been able to procure, employment. This story aroused the symmetries to be made.
sympathy of the Magistrate who or
client therefore, he could not blame him dants were an enormous concera, prob judgment:-The defence have her ba was brought to Hongkong against his
(Mr. Johnsor) if he commented severely on what Mr. Davidson's client bad said. He intended quoting from a newspaper -and, if his memory was any good. it was a pretty accurate report; it was the Daily Tress report. According to that.
ably, one of the biggest Japanese firms in the Colony. They had branches every where, including one in Melbourne. He thought the defendants manager had said that the 'Melbourne branch had been established for seven years, yet he did not know whether the mark, had been Skott & Co. never ought to have brought registered there or not; he merely said criminal proceedings; civil proceedings it must be registered" because it was in
hi contract nctex,..
Mr. Davidson bad said that Messrs.
should have been taken.
OUT
fed me under sub-section (e) that "otherwise
will
intendent of
Ho
"The acted innocently". strange coincidence of the two "Steamer" brands of four has not been explained. I do not believe that even prior to June
On Saturday morning. Inspector Kent the defendants were unaware of Messrs. showed that Kassim's word was not to be He stated that Kassim had Skett's, mark.
I am satisfied, further, trusted."
different story to the Captain- that the importation" of this particular
Polico. said that back consignment constitutes an offence, since when the war was over he was sent
come
ti to Penang, but preferred to it is "dmitted that before making their Hongkong in search of a Harbour Mas- Kassim June contract defendants knew of the had been taken before the
who suggested bid emigrant.
his registered mark. I fine defendants $50. ter. who
repatriation Penny as an I order the flour to be confiscated, to be CS.P. was willing to meet half the ex- put into other bags and sold at auction posted that the other half out of the Poor Bar The rest of a page would-be #35, and defendant bo sent back on the first available ship.
by Government.'*
-Sized.
registered Mr. Davidson replied that at that point | brand," He asked the manager how the report was slightly different from long the mark had been registered and what he had said, which was that if the he replied that he did not know. He mark on the bags of flour was an exact did not think it mattered a jot whether imitation of a particular mark, and the mark had been registered in Mel therefore calculated to deceive, it wasbourne or not, because if that was to be, possible for civil proceedings to be taken. held as a proof of innocence it would simply
Mr. Johnson: We'll leave it at that.
mean that if once a mark were registered Continuing, Mr. Johnson stated that in one part of the world it would be the summons was issued on a Monday. protected everywhere else. This mark The evidence given by Mr. Scott with was not protected because it had not Mr. Johnson: No, I refer to the costs regard to the interviews he had with been registered in this Colony by the of the prosecution under the Merchandise defendants were neither challenged nor defendants, although, they knew the markOrdinance, Section 12. My clients have contradicted. On the morning after they had not been in awe. They registered a been put to great expense to protect their mized the flour and inued a summous, similar trade-mark in Australia, brought legitimate rights You have power to
give us the four. member of the defendant firm called flour to Hongkong, sold it and rande a
д
QUESTION OF COST Mr. Johnson applied for costs. said he had authorities on that point.
Mr. Lindsell: He is fined $60.
and
would
to
ibe
He Mr. Lindsell (to defendant):"Appar
ently you have landed in Singapore had you l
You came here of your own free will. Is that not sa?
Kastim: Yes, sir.
been dumped here against your will Mr. Lindsell Why did you tell me you I will send you to prison for four weeks At the end of that with hard labour. time arrangements will be made to send you back to Penang. Inspector Kent will bring you up before me again
i
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