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A GERMAN TRADE MARK, GERMAN FIRM WIN THEIR CASE. "QUESTION" OF PENALTY HELD OVER, The hearing was completed, at the Magistracy, on Saturday, of the ease in which Wong Chun Hung, trading as the Yun Wah firm of 3, Queen's Roodt Central, was summoned, at the instance of "Messes. Deacon, Looker Deacon and Harston, solicitars for Mesars. Jebsen Co, of the Bund, Canton for having in his possession, for sale for purposes of trade, ting of blac shade dye to which a pin use the mark, trade mark closely, resembling the regis tered trade mark of the samplainanta was falsely applied.
The "Magistrate at a previous hearing had overruled an objection by the de- feries that a German had no right to sue in Hongkong Court,
Mr. M. H. Turner prosecuted and Mr. Le Mainda defended
Further evidence was called in support of the complainant's crise.
Have you registered it?" and he re-
this Colony,"
...
THE HONGKONG DAILY PRESS, MONDAY, OCTOBER 24TH, 1981.
Mr. Abnada: You thought that the Germans not being allowed in the Colony
you could use the mark?
gët advies.
enemy
stitute a warning which the defend ant could not negleet; he did receive it, think. but it won't affect my finding if I am wrong about that. That warn ing was one which the defendant was obliged to take notice of and which he
THE RENTS' ORDINANCE. PROPOSED AMENDMENTS,
The Objects and Reasons ""state, that the object of this bill is to make in the Rents Ordinance, 1021, certain amend- ments which experience has shown to be desirable."
Čkausa 2 proposes to amend section 4
tried before à magistrate.
The
be
A
question of costs the ease had to come about the power of attorney have been before the Court. The defendant had no considered by me and, rightly or wrong- desire to deprivo" the complainant of his, I decided that, in order for the com- rights, and Mr. d'Almada asked the plainant in this case, acting for the Bad. The Government Gazette contains the Magistrate, if antisfied that the man was
Anilin Fabrik, to take action, it is not text of a Bili to amend the Rants Ordin- acting innocently, to discharge him.
necessary that he should have a sealedance 1991, which will be introduced at The defendant than gave evidence on and registered power of attorney. Any the next meeting of the Legislative
lines that his fogal adviser had in-authority could prosecute; any person Council. dicated. He mentioned that he obtained finding an offence being committed his dyes from England and America and could reasonably take action if he hath at had been in the business about five years.
all a good reason for doing so. It I He did not know, until these proceedings am wrong. Mr. d'Almada will have an were instituted, that he was not entitled opportunity of bringing that before an other court if he wishes. Apart from that," the issue seema absolutely clear of the principal ordinance so na that the mark belonging, to another firm his tennot under that paragraph to state to oblige any landlord giving notice to The witness replied in the airmative
has been imitated by the defendant and definitely what he proposes to do. and said that he was not informed of the my question is whether the defend- paragraph in question, gives the landlord the warning left with his presentative, ant, in using that mark, acted innse right to give notice unly when he as plated in evidence.
cently in the "sense that he thought that tends either to pull down the domestic Mr Turner: Who told you that, that mark was one which he was freeway as to make it technically a
tenement or to reconstruct it in, “such a owing to the war, you could use German
to take without affecting anyone else's building.
now marks, because "it is not right?
interests.
It is feared that sour land- might put it this words may attempt to use this paragraph Defendant: I think the fact was publge at all of such a mark and had no praling down or reconstruction, and it Supposing the defendant had no know mules fide and with no real intention of lished in the paper. „Mr. „Curreen, clerk and interpreter to
I put it to you that no such thing (which in this case I think he had) and in the notice may be song "additional reasonable access to such knowledge. is thought that to require particularity Aleserse Deacon, Loker. Deacon and was ever published in the paper, and Pure the Tolice when the search war turks were transferred in the having knowledge of that mark, he would technica alteration which is intended to Harston, gave pridenes that he accom- couldnt have been seeing that the in those circumstances he took the mark, safeguard.
that would be acting innocently. But, bint wherevented on the defendant's talian of enemy property and remained be unable, afterwards, to save himself make it quite clear that any summary Clause 3 proposes to make slight promises, When his attention was called in his possession and nobody else was by saying he thought there was no harm offence created in the principal Ordin- The labels to which the comptamant entitled to use them until they were sold in wing it for same reason existing at ance or amending Ordinance; is do 4ook exception-the defendant said, "It Did you ever take anyone's adrier before that time; e.g., that it was is my own mark." Witness naked, using the trademark No.
As a merchant would you not have mark. Having once done that he finds plied, "No" When told that the mark been wiser to have gone to the Chinese to clear himself of guilt of the offence mary court power to transfer to the The object of lanso 4 is to give the it practically impossible, in my opinion, Belonged to websen & Co., the defendant Chamber of Core ark ow to with which he is now charged. However, Court actions which under the principal replied. They are Germans and not in fit inquiries-I did not know where there is this further point; whether ho Oruizance would otherwise have to he original jurisdiction of the Supremo Cross-examined, the witness said the You did not take the trouble, you did receive a warning. There, again, in tried in the summary jurisdiction. Chinese characters on the confiscated thought. Here's a chance they can'ty opinion, a warning given to the shop transfer of this kind might be desirable hubris stood for the words, Cock-pheas-prosecute: I will copy their trademark to the person ostensibly in charge, did where an action relating to the Saine ant trademark " ant the name of theThis mark was not in vogue at the
tenancy had a'ready been commenced in defemlant's firih. He agreed that there time
the original jurisdiction and where such This completed the evidence for the
action could not be transferred to the was nothing to suggest that the goods
summary jurisdiction. In such an event were Geroth goods or that they belong defence.
Mr. d'Almada submitted that the
it might be highly inconvenient that the ed to the Complainants. He would not express an opinion, judging from the defendant had satisfied the onus upon
two actions should be heard, separately stock, he saw (which was small) whether him and suggested, also, that the court could not plead ignorance of afterwards, a different courts. the defendant was doing a large businessmast consider this case as entirely dif-1 will say, the amount of goods in the special explanation of sub-clause (3):
r not. As an old Chinu hand the event from ordinary prosecutions ander shop is not a large one.
of clanse 4 seems desirable. Mr. Turner: That may be so, but the cipal Ordinance, which contemplates The prin witness expressed the opinion that the Mercandise Marks Acts because it!
defendant may have hier bere would go be the mark and was generally known that the Germans er
godown some only a trial in the summary jurisdiction, nos by the Chinese characters in making were not allowed in the Colony or to do
provides for an appert from the summ- purchases.
business here and not allowed to use
Mr. d'Almada: Meg," is ont prouf, mary jurisdiction to the full court of Ng San Mui enid he was a chemist in trademarks since the outbreak of war. The Magistrate: On the question of two judges. Speaking generally, "how- the dye, department of Messrs. Jepsen it is also common knowledge," said penalty. Mr. Turner will tell me if there ever, the Full Courts Ordinance, 1912, Ca. In October of last year he visited Mr. d'Almada, "that after the outbreak is any question of costs.
provides that all appeals from the The defendant's shop, with Mr. Riecken; of war most of the British firms as well
original jurisdiction, except interlocu they found goods exhibited there bearing as others, if they had the opportunity of
tory appeals, must be to the full court imitations of the "cock-pheasant" trade, taking German business, did so, whether
of three judges. Sub-clause (3) of clause mark and the man in charge-pot the it was a trademark or whatever it might
of the bill proposes to apply the pre- defendant was warned that this must be. Therefore, I say that the case must be
visions of the Full Court Ordinance, not continue or proceedings would be in considered in a special light. If there
1912, to any action transferved under stituted. This trademark was well-known | was any notice in the Government Gazette
Rub-clause (1) of clause 2. The objection in Hongkong and in his opinion custom or in the local newspapers, that the Mr. d'Almada: You can't get those to making the appeal in such a trans-
would ask for the cock-pheasant German trademarks were again in force costs, however much you want them
ferred action lig to the full court of two dyes, and not for Badische dyes.
and that no one could be allowed to Mr. Turner thought some costs should judges is that it would in that can be Cross-examined, before the war he was infringe them I have no floubt the debe allowed. As Mr. 'Almada had menty to provide that the appwal in in the experimental laboratory of the fondant and other people would cease tioned some of the preliminary negotia salidated with the transferred action any original jurisdiction action eon- Badis factory in Japan..
to do The defendant has only tions he would state, what he would not should also lig with the full court of two Mr. Almada ! Do you know that copied the picture; he uses the name of otherwise have done, that the complain- during hostilities all German Trademarks his firm in Chinese and English characant's had offered to accept-8200-as-com-sub-clause (2) of clause 2 of the hill that It is certainly an objection to were expunged from the register. iters; he is not conveying the idea that pensation but that was not acceptable na appeal to the full court
Mr. Turner: They were not expunged; he is selling German stuff. Assuming and Mr. d'Almada had preferred to judges places additional deny it. the was of three they were transferred to the custodian of there has been a technical offence, he raise hare brained ideas about the law of the determination of a CRAE of cases
should be absolved from all biame, while knowing perfectly well what the which ought to be heard speedily, especi having regard to the fact that he, per- law was.".
ally as the Ordinance is only a tempor sonally, received no warning before the
Mr. d'Almada replied that the defendary one, but the consideration mentioned search warrant was executed."
Mr.ant was entitled to raise any defence above seems to outweigh this objection. d'Almada added, that the proper course allowed by law. He had exercised that for Mr. Turney to have pursued was to right; whether it "had been accepted or have sent the defendant a letter of warn not was another thing. As "no proper ing: they was done in every solicitor's demand" was made for stopping the odice.
use of the mark he asked the Magistrate to order each party to pay his own costs. The Magistrate remarked that the de fendant was liable to a penalty of four months' imprisonment or a fine of $100. He would look up the question of costs Mr. Turner remarked that if the deand had better deal with the question of fondant in this case was to be regarded penalty at the same time. He imagined as innocent it was a very cheerful out the prosecution was not to anxious about This closed the case for the complain- look for anyone with trademarks to pro- the penalty as about the costs,
tect. The defendant admitted that he Mr. Turner said the case was brought Mr. Almada asked the Magistrate, know whom the trademark belonged to to show people in the Colony that in view of the fact that the case might and he set up a plea of ignorance of the Germans could protect their rights. The go farther, to make a note of the objec law which was no excuse. "Innocence", cage was not brought vindictively. tions he had already made to the whole in this cunnection was defined as in- The Magistrate: You don't want him given under section 4 (1) ( of the prin of these, proceedings, as follows:
advertence, but reviewing the whole be put in gaól!.. (1) that, the complainante have not haviour of the defendant, could that be Mr. Turner: Ob. no, we should not
enemy property.
Me d'Almada: They were expunged from the register.
The Magistrate concurred in what Mr. Turner had said and remarked that he had reason to know as he was at one tin custodian of enemy property him-
xolf,
Mr. d'Almada pointed out that the wit ness had not been able to give the evi- dence that he had been expected to give-that a warning letter had been sent to the defendant..
It was elicited that Messrs. Jensen's dyes were now finding their way into Hongkong but not directly through
them through intermediaries,
ant,
*09
Mr. Turner: Not in our's"
Mr. d'Almada also submitted that it! was too much to expect that a Chinese trader, should make the inquiries sug gested by Mr. Turner.
1
L
Mr. Turner said the hearing had been Protracted through legal points being raised which had been found not to pre- vent the complainant from proving his cast and there had been the additional expense of bringing witnesses from Canton.
Clause of the bill is intended to. warrants for amounts in excess of the check the practice of issuing distress standard rent, apparently in the hopes often well founded, that the tenant will hate neither the means nor the know ledge to resist such an illegal distress by means of ordinary civil proceedings, with their attendant expense and techni cality.
•!
Clause makes, it a criminal offence, punishable with a fine of $1,000 for any person, to do any act of fide an order to induce a tenant to quit. The clause has been fuserted because of complaints that certain landlords have been renoy- ing windows and even staircases in order to drive their tenants out.
Claus: 7 provides that a notice to quit given or confirmed by leave of the court, cipal Ordinance shall not be valid unless proved their ease and Jebsen & Co, do supported? He, or zather his manager, I dream of asking that, not hold a power of attorney from the Was warned and the trademarks had been The Magistrate: The maximum fine is given, the lessee may apply at any time
tir at Trovides that, even if leave Bad. Anilin Sodafabrik, the power of renewed and advertised in the Gazette.very small 2100. I think she for dainages if he can prove that the attorney produced by them being bad r d'Almada disputed this.
least as well as the most I could impose notice was not bond file, Section 4 (1) in law on thren grounds:
Mr. Tumer: They have all been for an offence of this kind.
It was agreed that, the dyes seized ees where the or gives notice to quit (7) of the principal Ordinance deals with (a) the power given by a corpora- advertised in the Government Gazette. nion-does not bear, as it should, thei. A B'Almada: lt, has not been could be returned to the defendant pro-Len the ground-chat-b intends to pall vided that the marks were removed and down or reconstruct the domestic tene-
sent of the corporation.
י;
of "uttorney, most strictly-
| proved.
44
CHARGE AGAINST
CONSTABLE.
ALLEGED TO HAVE ACCEPTED A BRIDE
intention of reconstruction and are pre- pared to abandon their alleged intention. to te-construct provided that the tenant) is prepared to pay an increased rent.
Clanse provides that a notice to quit given by a lessee is hab to affect any sub-lessed, naless the latter concurs with the cotice.
Clause, 9 provides that an ejectment order against a less is not to afect any the English Act. sub-lessee. This provision is taken from
(b) that having regard to the fact Mr. Turner It is such common know all labels bearing the cock, pheasant? ment. Clause has been inserted in the that the law always construes poweredge that it needs-ng-proof Continu-mark-were-given-to-the-complainants. bil because it appears that certain land- ing, Mr. Turner said the defendant was The Magistrate intimated that he would lords are using this provision mula fide, The Magistrate: Where do you yet almost naive in his admission that ho give his decision as to costa on Wednes, in cases where they have no real
wanted to copy the complainant's mark day: that lay?
Mr. d'Almada: It is laid down in the 'and get business thereby. He had no conveyancing Acts.
right to do that at any time. During The Magistrate. These are criminal, the war the trademarks were transferred proceedings; 1 don't quite know the to the custodian of enemy property and authority for the power of attorney being one of the few things never sold was construed strictly in criminal" proceed-Lenemy trademarks; they were re-trans- ings.
ferred to their owners offer the war. Completing his table of objections, Mr. With regard to the technical points d'Alaâda räunded off (b) by saying the raised as to the power of attorney," Mr. power of attorney was bad because it Turner submitted, first, that he did not
A Chinese constable, No. 163. who has did not specifically mention Hongkong need the power of attorney and the 21 years service in the Hongkong Force Classe 10 provided that upon the deter- Southern China did not include Hong. Magistrate had said practically the same. was charged before Mr. G. N. Orine, emination of the interest of a lessee any Anybody could bring these proceedings Saturday, with having accepted a bribe suis lesser becornes a statutory tenant of kong Ho added:
(e) that the documents," not having who had an authority, and as solicitor of 95 from a Kennedy Town shopkeeper; the head landlord on the same terms as been stamped before the summons was to lesars, Jebsen & Co., he could bring Inspector Appicton said the accused he would have held from his immediate Issued, as it should have been, the them under his general authority. As was alleged to have threatened to arrest landlord if the latter's tenaney con flower of attorney was inadmissible in to the power of attorney not being seal the complainant for wasting "water, but tinued, but at the standard rent. This evidence and the complainants were outed. Mr. Turner remarked that the United offered to overlock the matter if he were also taken from the English Act. <f_court.
Kingdom and the Colonies were the only given.86. The shopkeeper temporised The Magistrate: "Inadmissible"--we countries requiring a seal in such cases, and later informed Inspector Appleton. won't say "in evidence" because it has and a local Ordinance was passed in 1018 A trap was then laid. Inspector Wills
to do away with the necessity for a seal and some detectives went to the shop Having tabulated his objections, Mr. | if such documents were, properly drawn and hid behind the door. Looking d'Almadin proceeded to dipenas, the case, up in accordance with the laws in the through the cracks they saw the aconse generally, and said his client would tell place where they were executed,—in this given 25 by the shopkeeper and accept the court that, in consequence of what tase Germany, where no seal was re-it. When Inspector Wills showed him- was generally known that German trade aired. As to stamping, ho stamped itself. the accused dropped the note, marks were no more applicable during for safety. The stamping authorities The accused, declared that the case was hostilities, he had adopted this mark, would stamp a power of attorney if they tnimped-up one. He said that on without any attempt to defraud the worn satisfied this was the first time Thursday he reinonstrated with the shop public or the registered, holders of the it came into the Colony and that they keeper for wasting water. The latter mark. He put his own name on the dye were satisfied was shown by the fact that said that he was sorry, and the witness thereby telling the public that it was it was stamped.
thought a warning, would be sufficient. When he passed the shop again he was his own dys, and not the German firm's
invited inside. He went in and the shop- that he was rolling. Had he been nakeil
his will. Inspector Wills then arrested keeper forend the money on him against him
A remand wise granted for further enquiries to be made.
not been put in.
"THE MAGISTRATE E DECISION."
to stop the use of the trademark he in giving his decision the Magistrate would most willingly bare done go, if said: This caso seems so simple that I satisfied that the mark whe re-registered, do not think it is necessary for me to He was willing to do that now, but on a hold it over. Mr. d'Almada's points
a
5
THE UPPER YANGTSZE REOPENING.
ICING, October Mih. HM gunboat Cockchafer arrived hare this afternoon from Chungking. She re parts that there seem few soldiers on the river banks.
General Lu Hsiang denies reapon. sibility for Bring on steamers but has given orders to restruin the soldiers from further molesting them.
Steamers and proceeding to Chungking to proceed here but, if a further stoppage tomorrow. Passengers are now allowed. "ot traffic occurs, they may be required to return down river. Protection is not guaranteed here.
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