Page
January 7, 1907.J
brought great prosperity to a place in Switzer- land where the watches were mauufactured with the extensive busines that he did with China in the early days, and that the second name "Ena "
was after a man whom he had at the time in his employment. The appellants, Messrs. Ullmann and Co., has been established in business bere since 186). At the time when the watches were introduced into China there were no Trademark Laws in Switzerland, or indeed in the world, but when the Trade Marks Ordinance was passed in Switzerland Borey took advantage of it to register his marks, It was interesting to note that just previous to this, in 1875, a Trademarks Bill had been introduced in England and at shout the same time provision for the proving of ownership to trade marks was made in this Colony. In 1887 Frere registered the Po Wai and other marks in Switzerland and a little later the same marks were registered by a third person and all registrations were allowed, so that there were three persons registered as the proprietors of the same mark. Now the respondent Laba claimed the sole proprietorship of this mark.
Case adjourned.
*
Thursday, January 3rd.
IN APPELLATE JURISDICTION.
BEFORE THE TLL COURT.
OLD TRADEMARK CASE.
The application for leave to appeal, arising out of a judgment delivered by the Chief Justice in the action Luba r. Ullmann, was continued before their Honours Sir Francis Piggott (Chief Justice) and Mr. A. G. Wise (Paisoo Judge),
Sir Henry Berkeley, K.C., and Vr. II. G. Calthrop, instrueled by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist), appeared for the appellans, Messrs. Ullmaun and Co. and Mr. M. W. Slade, instructe! by Mr. John Hastings, represented M. Leuba Freres.
|
1
Sir Henry Berkeley, continuing his address, submitted that there was not sufficient evidence before the Court below regarding the assign ment of the business carried on in Hongkong. There was no good will to any of the businesses whether in London, Switzerland or Hongkong, and even if there had been an assignment of the business in Londou or Switzerland, there must also be in Hongkong.
Mr. Blade asked leave of the Court to put in as fresh evidence copy of an assignment which was filed in the Swiss Register of Papers.
Sir Henry Berkeley objected to fresh e.idence being introduced at this stage of the appeal, and the objection was noted.
CHINA OVERLAND TRADE REPORT.
authority to exclade certain members from the Club and legal action followed. The costs of these proceedings were ordered to be paid by the Club and its directors. The Club possessed no funds available for such a purpose, and the directors were not empowered to raise a logo, and certain shareholders objected to disposing of any of the Club's assets for the purpose. For sometime the expenses of the Club have exceeded its earnings, and the Club have an meana of paying their debts. Other shareholders holding 105 shares were also desirous of winding up, but t'e petitioners and these shareholders combined did not hold sufficient shares to piss the necessary resolution to wind up. he petitioners, therefore, a‹ked That the Club should be wound up under te provisions of the Companies Ordiusno of 1865, and that all necessary directions be given by the Court.
left is whether they were gambling contracts, | and so invalid. I am quite clear that so far as Chung Shun-koo was concerned they were speculative and that he intended to realise a profit by resale under the clause in the con. tracts, and not to take delivery. But that is not sufficient, In order that the proof should be disallowed, it must be shown that the cou- tracts were contracts for differences only, that is, that both parties entered into them with that object in view, and with no intention either to take or to insist on delivery of the oil. A very exhaustive and closely reasoned cross-examination of Chan Hua-ping, the managing partner of the Tak Tai shop, with | whom the contracts were entered into, failed to elicit anything which world fail me to the conclusion that so far as the first contract is concerned it was any other than a bona fide cou- tract for delivery of oil on the part of the firm; an exceptionally large one it is tru», but the Mr. Slade stated that the Club Lusitano was manager's statements as to how he proposed to formed in 1892 to carry out the object set supply the 11,0 gallons can, i think, be out in the memorandum of association. Some- accepted. He could not have supplied the whole time last Autama a judgment with costs was at any one time, even with the fourteen days given against the Club, and it was also brought notice which the contract required, but though home to the directors that they had been con- I cannot find any decision on the question, I am travening the law by supplying refreshments in fairly clear that where contract is to the Club. The Company of the Club was a take a large quantity of goods by install different body entirely to the scoial Club, and ments during a long period of time, there is no shareholders in the Company were not breach if the whole cannot b: supplied at any necessarily sharehold rs in the Club and vice one time within that periol. With regard to verki. In consequences of this state of facts it the second coutract for Iyawo gailons, i am bacame apparent that the Club could only sell uo quife so clear; ani I think different liquors under a licer o y as a public house, and tration referred to during the argument: it a principles govern it. To adopt the simple illatiually they closed the bar; and, in consequence debtor has ordered a suit of clothes from a
of that, it was impossible for the company carry. ing on the Club to make it pay. Under the contract being carried out the tailor can prove burrow, the consequenca being that although tailor and bankruptcy supervenes to prevent the articles of ass ciation the Club had no power to for the loss of profit, fut, if the debtor has th· Club was possessed of co 1siderable property ordered a thousand suits which he clearly has no it was unable to raise money to pay is deb ́s. use for, and if he intends merely to speculate Counselt asked his Lordship to take into con whether the tailor has himself entered into stituted, dissensions were rife among members, on the rise in price of cloth, then the questicu sideration that in thy Club, as at pres at oon. the contract speculatively, 'may, I think, be that a substantial body of the Portuga 88 com dete. miued by ascertaining what steps he has munity would have nothing to do with the Club, the directors of which went so far as to expel the Portugnese Consul-(7 a veal four years ago, The Cin's really could not carry on its
Colony, business on account of the liquor laws of the
Proceeding, he stated that there was no business carried on in Hongkong by Leuba which could possibly be made the subject of an assignment. There was a business carried on by Ullmaan, because there was a shop bearing that name above the door. No acts of apparent authority constituted the assignment of a trademark. Ani assignment was a document which had to bear a stamp, and Counsel submitted that defendants had to establish that they had a valid transfer recognised by the laws of Hongkong. Docu mentary evidence in the case was then discussed, and Counsel proceeded to quote authorities in support of his contentions.
The hearing was again adjourned.
-
Eriday, January 4th.
IN BANKRUPTCY.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
CHUNG SAUN-KOO'S AFFAIRS. His Lordship delivered his reserved decision regarding the admission of certain proofs in the debtor's estate. He said: The question have to decide is whether the proof of the Tak Tai Oil shop in respect of the difference on two contracts for the purchase of oil, entered into with that shop and Chung Shun-koo, is to be allowed to stand. In the first place I am satisfied that the two contracts were entered
.
into as alleged, and were not, as was suggested, bogus contracts. The only question therefore
B
taken to fulfil the contract should he be called on to do so. I have doubts whether the Tak contract; but the curious part of the case is that Tai did make sufficient preparation to fulfil this the bargain money. $1,200, was paid on the sec nd and not on the first contract, which certainly gives it an air of boua tide, and I think turus action of the trustee in testing these contracts the scale in favour of admitting the proof. The
in the way he has done was fully justified.
IN ORIGINAL JERISDICTION.
BEFORE SIR FRANCIS PIGGOTT (Cher JUSTICE).
MOTION TO WIND UP CLUB LUSITANO.
|
Considerable interest was centred in the motion brought before his Lordship by Mr. Slade for the winding up of the Club Lusitano. the Courthouse being nearly full of members of the Portuguese community.
Mr. M. W. Slade, instructed by Mr. C. D. Wilkinson (of Messrs. Wilkinson and Grist, appeared for the petitioners; Hon Mr. H. E. Pollock, K.C., instructed by Mr. P. W. Goldring (of Messrs. Goldring and Barlow) and MF, F. X. d'Almada e Castro, represented a body of shareholders, while au ther body of shareholders was represented by Sir Henry Berkeley, instructed by Mr. J. Scott Harston of Messrs. Ewens and Harston) Mr. H. G. C Bailey (of Messrs. Joanson, Stokes and Master
watched the case on behalf of the directors o: the Club
presented by Messrs. Lei ii and Romano- Sir Henry Berkeley said the petition was
regretted to say, presented in good faith for nephew and nucle. It was not a petition, be
the purpose of promoting the object for which the Lusitano Club was formed. It was not presented to enable the Club to be constructed ou a better basis. He suggested from facts appearing in the affidavits that the petition was the result of feelings arising from the expulsion of Mr. Romano some four years ago, and that Mr. Leiria, possessing 108 of the 116 shares, owned between him and Mr. Romano, had taken advantage of the unfortante dis- putes lately arising in the Club to fɔment the friction, and then presented the petition.
Mr. lade-I don't think my learned friend should make positive accusations of fact against any individual unless there is some evidence.
Mr.
Sir Henry Berkeley The cases are quite tion is made bona fide, it will dismiss the clear. If the Court is not satisfied the applica-
is not a bona fide application in the interests of p-tition. It is more thau a suggestion that this
the Portuguese community. Proceding, he 811 18.
Leiria, if the Club was Wound up. would b › a very large pecuniary bene- the object of putting money into anybody's ficiary. This company was not formed with
pocket; it was for the récreation of the Portuguese gentlemen of this community. It a liquor licence were taken out it would go s long way toward paying the expenses of the Club.
The petitioners, A. G. Romano and J. J. Leiria, con-ul general and vice cousul for Portugal respectively, set forth in their petition that the Club was formed in 1892 and reg.stered
When the bar was rua before there under the Companies Ordinance. The Club was
came a time when the prics of drinks was in- commenced in order to promote social inter-
creased. When some young gentlemen's soda- waters were made a little more expensive they course, etc, between members of the Portuguese community. It had a capital of $18,000, divided appeared to have made use of some unparlia into 360 suares of 850 each, of which the peti-panish these recalcitrant young memb 18, sod mentary language, The directors wanted to tioners held 116. Disputes arose about three
now refused to take out years ago between one body of shareholders, cer-
licence. The tain members of another body of shareholders and
unfortunate retirement of Mr. Romano from the Club seemed to have made it other members. These disputes continued and
not so led to certain shareholder ceasing to frequens left four years ago and stil the bar made fashionable, not 80 distinguished. Bat the Club and eventually resigning. Quite profits. Mr. Slade put it to his Lordship recently an attempt was made by those in
that because Mr. Romano was expelled the
No comments yet.
Private notes are available after approval.