1928-09-21 — Page 2

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THE HONGKONG TELEGRAPH,

“EVEREADY" TRADE MARK.

CHUNG WAH COMPANY:-

FINED.

Judgment was delivered by Mr. W. Schofold at the Kowloon Magistracy yesterday afternoon in the case in which Mr. R. S. lo G. Danfell, representative of; the National Carbon Company, pro- accuted the Chung, Wah Battery Company in connexion with in- fringements of the "Eveready" trade marks.

His Worship in delivering his decision found that the labels on the batteries seized on the defen- dant's premises were fairly close Imitations and gave a verdict in favour of the complainant."

An Interesting comment was made by his Worship relative to the action of the National Carbon Company in only registering the trade marks after they had become awate of infringements.. On those grounds his Worship refused

coats.

Mr. R. C. Tredwell, the United States Consul General was in court

FRIDAY, SEPTEMBER 21, 1928.

label, admittedly made by the de- fendants, as well as the ovidence of both sides; completely disproves this contention.

NOW

The next point, that the Chung Wah label was in use before the Eveready was registered si cor rect, but the evidence of defendant's witness proves that priority of user belongs to Eveready: he admits fie know of the label before he started using the Chung. Wah label.

The lost, and most important point is, do the Chung Wan labels in their colours and pattern, "re semble the Eveready Inbels with sufficient closeness to cause an or dinary citizen of Hongkong, by a casual glance, to think he was buy- Ing an Eveready battery when the was really buying a Chung Wah? Such a person would have only a vague idea of what Eveready labels, look like, and might have no know ledge of English writing which is certainly not understood by tire majority or citizens here. Evi- dence of a case of deception, though not required by the Ordinance, has been given; the two persons de ceived were a Chinese detective and a European detective sergeant,

Fairly Close Imitation. Comparison of the Chung Wah

deal of law as to what are distinc tive marks and what are not,

Mr. Russ later intimated how- over, that it would probably be better If he made his application by letter as he would like time to consider his position.

His Worship stayed execution for one week...

AMERICAN GIANTS.

Accused of Attempting to Trap Honest Tradesmen.

PUBLIC MONEY.

EXPENDITURE OF $820,000 APPROVED, YESTERDAY.

WHEN YOUR CHILD IS FEVERISH

BABY'S OWN TABLETS ARE HIS FIRST NEED.

At a meeting of the Finance Com Simple fever may be the bogin- mitten of the Legislative Council ning of more serious trouble; yesterday, presided over by the therefore prompt measures are. Coloniat Secretary (Hon. Mr. E. B. essential. Keep the child quiet in Hallifax C.M.G.) supplementary

WAS

expenditure amounting to $826,420 bed. Foed lightly, and giva approved. This Included plenty of bolled or filtered water $444,000 for the Aorodromo and to drink. Administer Baby's Own harbour development, to be re- Tablets acording to the directions. covered from future loan,

The Tablets, act on fever as a In regard of a vota for $27.381 direct anti-febrile specific, They That the American glants of for stores depreciation in respect reduce the Inflammation which business had como to the Colony to of Russian rails, the Hon. Mr. causes the fever and calm the cir trap the Chinese tradesmen was a Kotewall asked what it was intend-culatory disturbance. comment made by Mr. Hin-shinged to do with these. Lo in the Kwong Tung case which was resumed at the conclusion of the previous proceedings,

At the outset Mr. Lo applied for permission to recall Mr. Daniell to clear up certain legal points which arose out of the judgment just given,

*

Mr. Hugh-Jones pointed out that the cross-examination of the complaintant had closed.

at the time the judgment was de-abels with an Eveready label; to name of the manufacturers of the POBBBCSB a power of attorney, as he digestion,

livered.

Notice of appeal was given.

In reply to his Worship, Mr. Lo said that he wanted to know the

"Eveready" batterica.

Hia

Mrs. M. D. Mathesón, of 42 The Chairman They will be ro- sold as soon as there is a market Dufresno St., Montreal, states: "My little boy, five years old, was for them.

Hon. Mr. Owen Hughes: Do threatened with fever. I gave him any railways, In China use these Baby's Own Tablets at night and in the morning he was bettar. I rails?

The Chairman: I cannot say.always use Baby's Own Tablets: We will get rid of them as soon as for my little ones." we can find a market.

Baby's Own Tablets are guaran- teed absolutely safe and barm- less, even to the youngest child, Company and as such he had to and are a remedy for Infantile in- constipation, colic, was not the aggrieved, party. diarrhoea, croup, testhing troubles Counsel then argued that the arid worms. Of dealers, or post. Worship allowed Mr. Daniell to be recalled and in reply ruling that Mr. Danicil was pro- free, 60 cents per vial, from Dr. to. Counsel witness sald that the secuting in the name of the King Williams' Medicine Co., 60 Klangso word "Eveready" was not the was also erroneous. The form of Road, Shanghai.

summons used by the local author!- name of a factory in New York,

ties was not authorised by the Ordinance, Mr. Lo pointing out of a factory which manufactures that the words, "In the cause of theso batterics? The original the King" were not contained in of the factory was "The the form in the Magistrate's. Or- American Eveready Battery Co., dinance. but it was bought over by the Na-

Mr. Lo drew his Worship's atten- tional Carbon Corporation.

tion to a case somo time ago where- Hia. Worship: You cannot shy in a conviction was given against whether that name le still being two defendants and subsequently used? No, I can't any, but there an appeal. was lodged.. Hd (Mr: are still some letter-heads bearing Lo) had advised that notice bo served on the Crown as the res-

name

The MORRISON PIANO.

my mind demonstrates conclusively that the former were designed to be The defendant was originally a fairly close imitation of the charged on five different counts but latter, with intent to deceive pur- his Worship at a previous bearing chasers who knew something of the had dismissed three on the grounds Eveready flashlights. The colours that the prosecution were trying used on each labul are the same: Mr. Lo: Is "Eveready" a name to get him to impose two separate their arrangement in the back penalties for the same offence. ground is the same: the word The remaining two charges were: Chung Wah is in the same coloura (n) That they had in their as the word "Eveready" the word possession for gole

or for pur-unit cell for flashlights" are the ar of trade розея

manufacture same; the lettering of the label be- goods, to which a mark so close-low the words "Chung Wah" is ly resembling a trade mark, to black, with one line next to the wit, Hongkong Trade Mark No. bottom in white, just as in 211, of 1928 as to be calculated to Eveready labels; and the lettering deceive, was falsely applied: on the other side is also black and (b) That they falsely applied is word for word fdentical with that

Mr. Lo: Can you tell us the pondents but the appellants were to you to wit, batteries for on the Eveready labels except for

tch name of the factories which manu- condemned on the grounds that the Ashghts, a mark so closely one or two mistakes. On resembling a trade mark, to wit, evidence no jury could come to any facture these batteries ?Yes, The notice had been wrongfully served. If his Worship's ruling stood then Hongkong Trade Mark No. 211, other conclusion than that the National Carbon Corporation.

again be similarly Chung Wah label is an imitation of Mr. Hugh-Jones: My learned he would as to be calculated to deceive.

PLAYING AND. friend thinks that we give our victimised. the Eveready,

Continuing, Counsel said that in EDUCATING factories pet names like, we give to a dog. (Laughter).

ordinary criminal cases, any citizen. could prosecute in his own name,

Mr. G. S, Hugh-Jones appeared for the complainant and Mr. C. A. S. Russ represented the defendant,

After reading the two charges his Worship said:

Infringements Denied. The two charges in the present cose are brought in respect of cer tain labels which bear the name Chung Wah upon them, and are made up in red, blue, gray, white and black. These labels have been produced in Court,

Its admitted by the defence that batteries bearing these labels were in their possession on August 4, 1928, the day in repect of which the chargo la brought and that they had applied these labels to batteries

that name.

Mr. Lo: Is the word "Eveready"

Another point remains to be dealt with. Among the labels seized on the premises raided were Bome forgeries of the Eveready a description of the nature or but in a case like this, there were label. None of them were found quality of the battery -The word only three classes of people who the upon batteries and an explanation la put on all battery cells showing could prosecute. First was

user, secondly, the of their presence has been offered the quality. It is our trade mark aggrieved by the defence. No offence has and was first turned out by the Police, if they had the power to do been proved in relation to labels; American Eveready Battery Co. 80, and thirdly, the company should and I merely wish to point out that Mr. Lo: Is It a habit for come forward. If any proof had been offered that gigantic American corporations to In England, said Counsel, such an any such label had been found on buy the rights of certain factories action is authorised by the Board a battery in the possession of the for the purpose of selling their proof Trade with the concurrence of defendant, I should not have duce at given parts of the world?- the Lord Chancellor and then only hesitated to inflict the maximum It depends on the arrangement according to the Acts of Parlia- penalty that lies in my power. As made, but it is a curious fact that ment.

STANDS ALONE FOR PLEASURE

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Guaranteed for "TEN YEARS.

розев.

ARRANGED.

it is, I order, that all, such forged when we buy up a factory, we do Counsel then went into the merits Eveready labels shall be forfeited it on a sane and sound basis. We of the evidence, and submitted that CASH OR EASY PAYMENTS and destroyed.

do not leave the important things there was no ease. He contend- behind. We even buy up the good-ed that the word "Eveready" wais will and trade mark as well.

descriptive and could not therefore Mr. Lo: Did the National be registered as a trade mark. Carbon Co. buy up the rights of After further argument on the point the American Eveready Battery Counsel touched upon the matter of Co.7-I don't know but I presume acquiescence. Ho said that a cur- they must have done so.

There are some comments I wish which they had manufactured. to make on the procedure adopted Their case is, therefore, that the by the National Carbon Co. in con- Chung Wah label in no way in-nexion with this CASO. They do fringes the Eveready trade mark not appear to have taken any stops Inbel registered as No. 211 of 1928. to have their trade mark register being unlike it in material partied here until they found that it culars; that even if it does, the was being infringed. Further, it Chung Wah label was in use before was not till they had been aware the Eveready was registered here; of this Infringement for some. und that the 'gel-up' of the Chung time, and had got their trade marks Wah label is common to the trade, registered, that they took action, as many other similar labels are in This action was a raid on sworn in use locally, the get-up of which la formation. It appears to me that very much the same.

it should not have been as difficult The defence further state that to discover the defendant's where the Eveready trade marks should abouts and take a civil action to never have been registered; but restrain his use of these labels as admit that no objection has been it seems to have been; and I can raised to the registration so far, only infer that the Company have Dealing with the last point first been badly served in this Colony I would merely observe that the fact in the past. remains that the trade mark No. 211 is registered, and that protec- tion for it dates back to the time of the receipt of the application for re- gistration, December 5, 1927. If defendant has hitherig failed to raise the objection he now wishes to make, he must abide by the con- sequences of his fullure. I cannot for a moment admit that he can- not be expected to know when a trade mark is advertised for re- gistration: it is his business to know; if he neglects to watch the trade mark advertisements he fa

neglecting his business.

The "Get-Up."

יד

The next point I will take is that the get-up of the label is common to the trade. One exhibit, namely the battery with a blue and white

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Costs Refused,

Under these circumstances I do not feel disposed to make any order for costs in favour of the prosecu- tion who appear to me to have brought some of their trouble on themselves by neglecting to register their trade marks earlier,

Printer Called.

rent user of that.. label could be vindicated if it could be proved that the aggrieved party had ne- The next witness called for the quiesced to it. In this case, the pro prosecution was an employee of the secution had known that their Tien Taun Lithographic Works, labels were being infringed and yet who said that his firm had printed they took no action. They simply the labels in question for the de- wrote to the Home office and com- fendants. This had been going plained about it. Action was not on for about three or four years. baken until the trade mark was re- went on to say that although not re- The design was submitted by do- gistered in Hongkong, Counsel gistered they could still have taken fendant.

This closed the case for the pro-action against the defendant for accution.

Counsel's Contentions.

Before opening the defence, Mr. Lo submitted that he had no case to answer. Counsel again brought up the question of the status of the complainant and argued that his Worship's ruling at the previous hearing was erroneous. He con- tended that Mr. Daniell had no The defendant must, however, locus atandi without power of at- be convicted on both charges and torney from the National Carbon the labels and goods seized. ordered to be confiscated and the former destroyed. The defendant will also pay a fine of $50 on each charge and cach side will bear their

own costs.

are Co.

passing off goods supposing to be belonging to 'others. The Au- thority was laid down, Counsel said, that if a plaintiff stood by and allowed a defendant to in- fringe his trade mark, spent money on it and acquired a reputation, he had no recourse.

Mr. Lo said that the attempt to this prosecution was not to pro- secute but to persecute.

Mr. Hugh-Jones objected to Buch remarks made by Counsel when merely submitting that he had no case to answer,'

Mr. Lo replied that he was en-

Counsel differentiated between a criminal prosecution where the in- torcats of the community were in titled to make observations on the volved and what he described as a evidence given and enid that the quasi criminal action in which American giants of business had Mr. Rusa: This is rather an im-only the two parties were concern-come to Hongkong to trap honest the tradesmen but had failed miserably portant case. I take it your Wor-ed. He contended, that in ship will state a case?

present case, Mr. Daniell, on his in their efforts:

The case was adjourned till next Is Worship: On what grounds? own evidence, prosecuted as a ro- Mr. Russ: Well, there's a good presentative of the National Carbon Thursday.

I WON-DER WHATS BECOME OF SAL-LY!

I TOLD THA WHIPPOOR WILL, I

•TOLD THA

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