1927-08-18 — Page 4

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DES VOEUX ROAD

THE HONG KONG DAILY PRESS, THURSDAY, AUGUST 18th, 1927.

CAMEL

TRADE MARKS THAT

CLASHED.

PERMISSION TO REGISTER REVERSED BY

SUPREME COURT.

JUDGE'S WISH THAT DEFENDANT'S CASE HAD BEEN ARGUED,

`Judgment was` delivered by the he did not consider that the Regis acting Chief Justice (Mr. -Justice- trar bad misunderstood the law up J. R. Wood) at the Supreme Court to that point. It was when he ap yesterday morning in the case in proached the third point that he which R. J. Reynolds Tobacco Com found the decision of the Registrar pany of America opposed the appli was based upon an incorrect view cation of the Cairo-Italian Cigarette of the law. In the absence of sworn Company to register a trade mark evidence he formed the opinion that "Golden Camel" cigarettes, put-no impediment to registration had ting forward that it clashed with j been shown. their own trade mark "Camel" on the "Camel brand of cigarettes.

His Lordship, in his judgment, found for the appellants (the Rey nolds Tobacco Company). He com- mented on the decision of the Regis trar of Tende Marks, to register the opposed mark, and directed him to decline the respondent appli- ention for registration," the respond ents to pay costs in Court and at the hearing before the Registrar.

Mr. C. G. Alabaster, R.C., ap

» SHOES I !!peared for the appellants, the res

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pondents not being represented.

His Lordship said that the appeal was without recent precedent in the records of the Court and for that reason it was to be regretted that the decision of the Registrar which was being appealed from was not supported before the Court by legal argument.

Neither the Registrar of Trade Marks nor the respondents in whose favour the decision of the Registrar was given had attended, and in future cases he would welcome the assistance of the Registrar, especial ly in cases where otherwise the matter might be argued by one side only.

"Real Evidence."

AN AXED CONSTABLE.

ASSAULTED BY ANGRY WOMEN.

WHAT PROVOCATION?

An old Chinesa woman who was said to have gone to the assistance of her daughter when the latter was seized by a peliceman appeared at the Central Magistracy yesterday for assaulting a police constable with an axe.

Mr. D. McCallum for the defend- ant submitted that the cause of the trouble was really between the com plainant and defendant's daughter Cheng Yau.

The defendant then: came out of the same house with an axe in her hand and struck the constable as he stopped to pick up the helmet. The man westward, leaving the constable stunned upon the ground.

ran away

An expolice constable said that on August 9th he was in Second In his judgment he says:-I have Street. When he reached No: 33 a

the opponents' man rushed out of the house carry- - nothing except statement that the marks conflicting a bamboo pole, with which he His Lordship rommented "In my struck the constable, knocking his view he had before him material helmet of. sufficient for his decision which he omitted (as I read his judgment), to take into account. He had be- fore him the two trade marks them seives. These trade marks are what is called in the text books on the law of evidence, renl'evidence, in this matter. The question before the Registrar was whether or not this evidence, showed that the re- gistration was prohibited by section 11. To the solution of this problem the Registrar does not seem to have directed his mind. For this reason, it is my duty here, to attempt it myself, and in so doing to con- sider the application de novo,

The object of section 11 may be described as threefold. It is in tended to relieve the proprietor of

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· The attack was 'absolutely unpro». voked, added witness. A crowd of about 100 people quickly gathered. A Chinese constable corroborated. The defendant said she lived at! 23, Second Street, a grocer's shop. on August 5th she was seized by H.. Hodgson, of the R.A. F., was complainant and taken up to the charged at Kowloon Magistracy police station, though not detained. yesterday with drunkenness at 66, On August 9th the constable arrest Nathan Road, Kowloon; with as- ed her sister-in-law and took her saulting a foki employed at this away. Later in the day the co-shop; and with assaulting a stable appeared again and began to Indian constable. abuse her daughter Cheng Yau.

Hodgson pleaded guilty."

wound on the constable's head.

4

PH

I

A

SON

ERECTION OF MATSHEDS.

NO PERMISSION FROM P.W.D.

CONTRACTOR FINED.

Mr. W. E. Hollands of the P.W.D."summoned a Chinese con- tractor before Mr. R. E. Lindsell at the Central Magistracy yester. day morning for erecting mix mataheds on Crown land at Shau- kiwan and with removing and

from 1 blasting stones

quarry above. Saiwanho without a permit from the P.W.D.

Mr. Hollands told the Court that

a trade mark from unfair competi-The constable struck the girl and It was stated that at 6:30 pm tion, also to prevent possible cause defendant went up to separate on Tuesday, the defendant went of litigation, and also to prevent them, whereupon she was seized by into Hung Cheong's grocery shop the consumer from confusion of the wrist. The constable then went in Nathan Road. He was then un- ideas when selecting purchases into a shop and returned with ander the influence of liquor and the defendant was taking undue The question to be decided was are. Witness denied that she asked a shop fuki for two bottles advantage of the P.W.D. He had“ whether the Golden Camel "trade struck the complainant on the bead. of brandy. Defendant said he had applied through their architect, In this case the Registrar had mark is "Matter, the use of which

In reply to Magistrate (Mr. R. no money and refuse to pay for his Messrs Raven and Basto for per decided to permit the respondents would, by reason of its being cal- E. Lindsell) witness exid she could purchase. An argument then en- mission to erect two matsheds, and to register the trade mark in ques-culated to deceive, be disentitled to

not account for the long incised sued between the foki and the de-although this had been approved, no permit has been issued. But tion but the actual registration had protection in a court of justice,"

fendant. The latter became en-

when he visited the place he found. not yet been made. In general, the Court would not interfere with the discretion of the Registrar, which was of a judical bature, unless it could be proved that the Registrar i had acted male fide or in reaching his decision had misdirected himself in law. The experience and know ledge of the Registrar, which the Court did not possess, rendered the Court reluctant to vary any decision which he might have arrived at.

The Registrar, having heard the parties, had admitted the respond ent's mark to registration, though

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The old rule of a Court of Equity, said His Lordship, refuses protection to the owner of a decep- tive trade mark, but in the present case there was no proof to show that in fact any deception had oc- carred. The Court was, therefore confined to considering whether the Golden Camel mark was, on the face of it, obviously and necessarily deceptive.

Legal Meaning of "Calculated to Deceive." The presence in a trade mark of a word common to itself and an-

His Worship remarked that unraged and struck the Chinese over six mataheda bad been put up. In

less she could explain the cause of

the eye..

the wound, her case was hopeless. At that time there were thres

The Woman's Version.

for

the matter of the stone quarry, the P.W.D. had definitely refused to rant a permit, but when be visit- ed the place he found ix or seven men-zt-work-removing the stones The quarry looked as if it had been worked for some time.

bottles of stopt wrapped up another customer. Hodgson seized The defendant's daughter, Cheng the bottles and another struggle en- Yan, of 29, Second Street, said that sued. The fort was again struck sometime on the morning of August and then police whistles were 9th her aunt was arrested and wit blown. An Indian constable "ar-

The defendant pleaded guilty to ness followed her to find out what rived on the scene and he was also. was to happen. When they got op assaulted. Sergeant Baker later both charges and was fined $25 on posite to the Police Station com- arrived and, after some trouble, the the first count and 830 on the plainant seized bor.

defendant was taken to the police second. station. He gave trouble at the! Police Station, but was quite sober enough to know what he was doing. In reply to the Bench, it was stated that neither the Chinese

The Magistrate: Without a word? Defendant He asked me if I he had not yet made the Te other trade mark was not conclu knew the woman, and when I said gistration. The question which sive that the mark was deceptive.she was my aunt, he arrested me he (the judge) had to decide was in deciding whether the respond- Witness contioned that the con- whether the application came within enta trade mark was calculated stable threw her to the ground, and fakt nor the Indian constable was

to deccive," the Court, in the ab- struck her mother several times injured. tained in section 11 of the Tradesence of evidence is to trade his when she came to witness's assist- tory, would take into account the ance. Neighbours, shouted "They Marks' Ordinance, 1909 (Ordinance 40 of 1909), which provides as commercial use of both trade marks. are killing your mother!" Her In this connection it was inter-mother was taken away and witness esting to note a case in which the *State Express "cigarette manu- facturers opposed the application of another Company to register other cigarettes under the name "Stateroom."

follows It shall not be lawful to register as a trade mark or part of a trade mark any matter, the use of which would, by reason of itz being calculated to deceive, or otherwise, be disentitled to protec- tion in a court of justice."

Registrar's Judgment. The Registrar, in delivering his judgment, set out the reasons for his decision. Firstly, that an ap parently registerable trade mark (as

defined in section 9 of the Ordin- ance) should, in the 'proper exercise of his discrétion, unless good canse be shown, be admitted to registra tion. Secondly, "that the opponents of the application had undertaken the burden of showing such good cause; and, thirdly, in the absence of evidence, either oral or on an

affidavit, no such good cause had been shown. He, therefore, decid- ed in favour of the applicants.

of

The State Express" were suc cessful, continued His Lordship, but only because evidence had been given that actual deception had oc

urred.

i

With regard to the actual words, it was obvious that while "State" might include the state of Maine and the state of digestion, the "Camel " means always a camel and nothing more.

ran home.

BIG FIRE NEAR KUALA LUMPUR.

HUNDREDS RENDERED

HOMELESS..

When asked if he desired to say

KUALA LUMPUR, August 10th. that he wished to express regret at anything, the defendant replied

A terrible fire destroying nearly the occurrence. He did act quite 40 houses and rendering hundreds now what he was doing, although of people homeless broke out in the be could remember quite a lot of small hours of yesterday morning what happened

at the village of Bangi, 24 miles from here.

When asked where the constable got the axe, witness at first said 33

On the first charge, the defendant Second Street, and later 29.

was cantioned. A fine of 85 was Magistrate, to defending solici-imposed on the second count and tor: Do you think it is worth a fine of $10 on the third. going on with the case ?

His Worship added that he WLI not prepared to believe that the woman had been struck by the con- stable.

BORISOFF PLAYS.

PRIVATE RECITAL AT 1

CANTON,

Shortly before 2 a.m. the local brigade received a call from Kajang Police Station and an engine up-- der Superintendent Lloyd ime mediately set out. ·

-On arriving 45 minutes Inter the fire by this time had get complete hold of an entire block of buildings and was burning furiously.

Becuring water from a stream

Persecuted For Some Days?

Mr. McCallum laid the two

On Sunday evening there was a about 250 yards away hoses were women had been persecuted for

very interesting recital by that ac turned on and after two hours, some days previous to the assault.

complished violinist, Mr. Borisoff pumping the fire was got under. Mr. McCallum: Does

The origin of the outbreak is not Wor at the home of Mr. and Mrs. Davis, your ship believe that this woman de of The National City Bank of New known. The damage is roughly liberately attacked the constable 7

York in Canton, Mr. Borisoff com- put at over 850,000.

The Kajang Police ander Mr. The Magistrate: Yes, that is what bines amazing technique," with 1 am. inclined to believe.

mellow richness of tone and feeling, Delamore rendered all possible as- Mr. McCallum said that the that carry bis hearers along on the sistance before the arrival of the evidence for the prosecution was wave of his art. In the delicacy of brigade.Straits Times. unsatisfactory and that for the de- the Orientale by Cesar Cui, od

A

Customers would be asking for "Camel brand, and, on payment might be tendered the products of either party indifferently. Both articles would be mentioned in con- versation by the same name. The Continuing, His Lordship said he respondents desired to register a respectfully agreed with the first green and gold lehei. The appel fence equally so. He submitted the surge of the Chopin Nocturne His programme was:- law point on which the Registrar fonts are now, and will still be that the cause of the trouble was in E flat, he showed us of his best.

Ave Maria

Schubert-Wilhelmj. had to reply. As to the second, the entitled, to wea label of green between the constable and Cheng In the final number, the wild Slav Rondo Capriccioso Saint-Saens. task of showing good cause against and gold or any other colour. Yan, and that the mother, seeing Gipay Airs by Sarasate, he perhaps Andante Cantabile... Tchaikowsky. the registration had no doubt been

"In the result, therefore, is her daughter assaulted, joined in. reached the greatest heights. One Zephyr

Caprice Viennoise accepted by the opponents, but the Lordship. concluded this apreti, in The Magistrate: I am not at all must not forget to mention the Liebeafrende fact that in fulfilment of this dis-my opinion, aucceeds. I direct the

excellent accompanist who agisted cretion the opponents had not offer Registrar of Trade Marks to decline antisfied that there was any im-

mediate provocation. ed any evidence was not conclusive the respondents' application. The against them.

respondent's must pay the costs of After dealing further with that the appellants incurred before the view, His Lordship went on to say Registrar."

The defendant was sentenced to three months hard labour, and her Gross-summons was dismissed.

Kreisler. Kreisler.

Mr. Borisoff. The evening was Nocturne in E flat. very enjoyable one, particularly in Orientale Canton, where one has such limited La fille aux Cheveux de Lin opportunities for hearing any music at all.

Chopin.

Cui.

Debussy.

Humoresque

Dvorak

(Continued at foot of next column.) 1 Gipsy Airs:

Sarasate,