C & A. MODES LD. V. CENTRAL PURCHASING ASSOCIATION LTD. AND OTHERS

16~ Vol. XLVIII.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES.' [No.5. ln: the Matter of the Patent (No. 141;047) of ·Western ElectricO'o.Ld. In thecircumstances; I think the Patent should be extended for the period of four and a half years. The Patent expired on the 17th of May, 1930,and it will therefore be necessary to make a re-grant in respect of the. invention. I will accordingly order the regrant in the form settled in In re British 5 Thomson-Houston 00. Ld.'s Patent, (1929) 46 R.P.O., 367, for a period of four and a half years from the 17th of .May, 1930. IN THE HIGH COURT; OF JUSTICE.-OHANCE-RY DIVISION. Before Mr. JUSTICE HUMPHREYS (sitting as Vacation Judge), August 20th, 1930. 10 Before Mr. JUSTICE LUXMOORE. December 9th, 1930. c. & A. MODES LD. V. OENTRAL PURCHASING ASSOCIATION LTD. AND OTHERS. Trade Name and Passing Off-Defendants advertising' their goods under the 15 names of "0. P. Modes" and tlO. P. A.Modes "-Mo:tion for interlooutory inju·nction-Injunction granted-Motion for judgmen,t in default of Defence- Judgment for Plaintiffs. On the 2nd of August, 19'30, O. ,& A. Modes Ld, commenced an action against the Central Purchaeina Association Ld., Herbert Frank Clarke and .William 20 Clarkeclailning an injunction to restrain the Defendants their directors servants and agents from carrying on their business by advertisements or otherwise under the style 'C. P. Modes without sufficiently distinguishing their business from that of the Plaintiffs or under any other style so closely resemhling the Plaintiffs as was calculated to lead to the belief thac the Defendants 164 No.5.J REPORTS OF PATENT, :DESIGN, AND TRADE MARK ,CASES'. [VoLXL,VIII. C.& 4. Mo.tf,.e~,L~. v•.Uentral. Furc-ha·~ing AseociatiosiLtd..and Others. were the Plaintiffs or were connected with them 'or were a branch or department. of· the Plairrtiffs and. from passing off the Defendants' goods as and for the goodso£the Plaintiffs; and for .delivery upvdamages and costs. The Plaintiffs gave notice of motion for an interlocutory injunction in the terms of-the writ and the motion was heard by Mr. Justice HUMPHREYs,sitting BiB vacabion Judge, on the 20th August, 1930. D. H. Oorsellis (instructed by John B. Purchase & Cla.rk) appeared for the Plaintiffs; E. L. Bathu,rst (instructed by Pearce & Sons) appeared for the Defendants. After the affidavits filed by both parties had been read and after Counsel 10 had been heard, the learned Judge delivered the following judgment:- a Humphreys J.-In this case I am quite satisfied that the use by the Defendants of the words "0. P. Modes" as the descrjpt.ion of the business which they are carrying on, and I consider that is what it amounts to, is likely to cause confusion and I am satisfied that it has caused considerable confusion because 1.5 I have evidence that a number of persons have in fact thought that "0. P. "Modes," which was the name under which the Central Purchasing Association, Limited, choose to describe their business in their advertisements, was the business of C. & A. Modes, Limited, the Plaintiffs,and, therefore, it would be right for the Court to grant an interlocutory injunction pending the hearing 20 of this action. The three objections that have been raised by the Defendants are these. First of all, they say that although some sort of confusion might possibly arise, that they ought not to be restrained by interlocutory injunction from using the name which is an estahlished name' and which has been to the know- 25 ledge of the Plaintiffs used by them for some time. Upon that point I have to look at the dates. The Plaintiff 'Oompa.ny on the one hand is an old established business with a very large cap ital, and accor-ding to the evidence, and the admibted ev idence, doing a very large busi ness indeed in London arid elsewhere and has been for years, and the expression" O. & A .. Modes, Limited," 30 or "0. & A. Modes" or "Modes" appa.rently has become very well known indeed as indicating the goods in which the Plaintiffs deal. The Defendants are 'persons named Clarke as wel l as a limited company and the two Messrs. Cla,rke started t rading for the first time in February of this year, they chose to ca.ll themselves the Central Purchasinq Association, that they were perfectly 35 entitled to do, and they registered under the Business N ames Act, in that name. Then it occurred to them that they 'would describe their goods as "10. P." goods, those being the initials of the first two words of their trade name. Almost directly after thab, in the following month of March, they turned their business into a limited company in the name of the CeniraiPurchaeinq Associa- 40 tion, Limited, .and they at once began to advertise largely their goods under the name of "0. P. Modes" as if their business was a business carried on in the name of O. P. Modes, and so far as the advertisements are concerned, of which a large number have been before me, I find no indication that they have any other name than" O. P. Modes." The Central Purchasing Associa- 45 tion is something that does not appear on the advertisements at aI'I; it is quite true it does .appear on documents which are sent to persons who eventually purchase goods in the form of labels for the return of the. goods if not satisfactory, and so forth. It is right to say no fraud is alleged here, but I 165 Vol. XLVIII.I REPOR,TSOF PATENT, DESIGN"AND TRADE MARK CASES., [NO'. 5. c. ~·A. ModesLtJ v, Oentral'Pu,rclta,sing Association Ltd. and Othere. cannot help saying I think it mustJiave been present to the minds Qt£" the M~~sr~. ,Clr;-rke.MTi~en th~y chose '"tCl call. their goods."".'C.P. MQc;le~" . ,t:h~t t~~y might be Interferl~g with the very well, known"buSllless.eO'f>Q~&4- ..~~~~s" I £hink,thatwa,s' present in their minds and they took the risk.' I do:' riot" put 5 it higher than that. They continued to advertise and they have been doing business for that really short time between Marchand the issue of the writ in this case which was some time in August, the present month. Another fact I have to take into account is that there was a delay, It is suggested that the delay dn this, case is fatal. I find nothing which would be of 10 greater 'assistance to me in such a matter than the la.ngu,age of Lord W renbu,ry, then Mr. Justice Bucklep in the caee to which I have been referred; and in which he considered whether the delay in that case of some three months-s-and it is sub.. stantially a delay of three months that has taken place dn this case-s-ought to make any difference in his granting an interlocutory injunction. That was in the 15 case of the Army and Navy Co-operative Society, Limited, v, Army, Navy and Civil Service Co-operative Societs) of South. Africa, Limited, (1902) 19 R.P.O. 574 and Mr. Justice Buckley said : "Upon the whole I think not. It seems that " what took place in May was that there was little response to the prospectus." Here I have no doubt as the resu (...truncated)