IN THE MATTER OF HOEMOULLER'S TRADE MARK AND IN THE MATTER OF THE TRADE MARKS ACT 1905

,Supptement.]. May 3,1911] ' THE ILLUSTRATED OFFIdIAL JOURNAt (PATENrS). 249 REPORTS OF PATENT, DESIGN" AND TRADE MARK CASES. National Phonograph Company of Australia Ld. v. Menck, the public who had acquired possession of articles embodying the Appellants' Patent. His misfortune, however, consists in this, that by the very fact that he entered into contractual relations with the Appellants, he has become seised with the knowledge of the conditions on which they dispose of their 5 goods, and he is not free to propane the plea that such conditions have not been brought home to him. When he therefore announced his intention to deal in these articles as ordinary articles of commerce, he must be held to have' pursued a mistaken course, the course of treating himself as an unrestricted instead of a restricted trader. In this particular case the result may involve 10 some hardship to him, but their Lordships cannot see their way to a departure from the principle that a restriction rests upon a purchaser of goods which are covered by a grant of Patent, and which have come into the possession of the purchaser in the full knowledge of the restrictions imposed by the patentee upon their disposal. Notwithstanding the most able presentment of his case by 15 his Counsel, Mr. Levinson; their Lordships are of opinion that in the one particular referred to it cannot, be given effect to. Their Lordships do not further examine the attitude and action of the Appellants, but they are of opinion that the award of costs in favour of the Respondent in the Court below should stand.und that having regard to the 20 condition upon which special leave to appeal was granted the Respondent iR entitled to his costs as between solicitor and client in this Appeal. Their Lordships will humbly advise his Majesty that the judgment of the HighCourt of Australia be reversed, and that, in lieu thereof, an i.njunction in the limited sense before rnentioned do issue against the Respondent, namely, to 25 restrain him, his servants or agents, from infringing the Letters Patent, and that quoad ultra the Appellants' claim in the action be dismissed, with an Order as ' above indicated as to costs. IN THE HIGH COURT OF JUSTICE.-CHANCERY DIVISION, Before MR. JUSTICE JOYCE. 30 February 22nd, 1911. IN THE MATTER OE' HOEMOULLER'S 'l"RADE MARK and IN TIlE MATTER OF THE TRADE l\fARKS ACT 1905. Trade .Mark.-.i.l1otion to eXjJunge.- H Alpha."-Longuser by Applicanis>« i35 Concurrent user.-Trctde Marks Act 1905, ..Sections 11, 21, and 85.-0rder to expu1~ge made 'with costs. H. B., a Danish firm, registered the word" Alpha," as their Trade Mctrk on the 1st 0/ March 1909 for internal combustion enqines in Class NO.6. J. H. and M. had used the word" Alpha ;, since 1908 iii connection ioiih. their enqinee 40 but had not applied to reqister the word as their Trade Mark. They moved Supp'lt1Mnt. j 250 THE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). [May 3,1911 DPORT8 01' PATENT, DESIGN, AND TRADE llA.RK CASES. In the Matter of Hoemouller's Trade Mark and In. the Matter of the Trade Marks Act 1905. to expunqe H. B.'s Trade Mark from the Register. H. B. contended thattliere had been concurrent user, but it did not appear from the evidence that there had been any sales of their engines in this country until 1908. An Order was made to expunge the Trade Mark toith. costs. On the Ist of March 1909 Hoemouller Bros., a Danish firm, registered 5 under No. 310,919 the word" Alpha" as a Trade Mark for internal combustion engines in Class 6. Johnson, Hurley and Marti1~ Ld., on the 17t.h of August 1910, gave notice of Motion for an Order for rectification of the Register by the expunging the mark therefrom. It appeared that the Applicants began to use the word" Alpha" in August 1903 in connection with their engines, and from 10 thence onwards they continually used it, and had made and sold 600 engines, which were all called" Alpha," and most of them were so stamped. All their engines were advertised in engineering and motoring newspapers under the name "Alpha." The first occasion on which the Applicants heard that the Respondents had registered the word was when they received a letter on the 15 12th of July 1910 demanding that they should cease to use the word. Confusion was alleged to have arisen, and the Applicants had received a letter intended for the Respondents. The Motion was heard by JOYCE J. on the 22nd of February 1911. Kerly (instructed by Bird and Bird) appeared for the Applicants; Kimber 20 (instructed by J. E. Shearman) appeared for the Respondents. Kerly for the Applicants.-I apply under Section 35 of the 'I'rade Marks Act 1905 to have the Register rectified by the removal of the word "Alpha" registered as a Trade Mark by the Respondents. [Sections 19, 20, and '21 of the Trade Marks Act 1905 were read.] The Applicants have used this word for 25 many years. They are not now seeking to register it, but they will apply to do so as soon as the Respondents' mark has been removed. The Respondents may have used the word in Denmark for many years, but there is no evidence of its use in this country, at all events untiI190~. The only question is,-what did and what does this word mean in the trade? I submit that it meant and means 30 the goods of the Applicants. [Letters dated in 1903 from customers making inquiries about and giving orders to the Applicants for their engines, and describing them by the name" Alpha" were read.] Affidavits were read made by (among others) Daniel Henry Hurlep, a director of the Applicant Cornpany, who stated (inter alia) that on the 12th 35 of July 1910 Edwards &: 00., on behalf of the Respondents, wrote to his Company ill reference to the use of the word "Alpha" for marine engines and saying that they would be glad to hear that the Company were prepared to discontinue the use of the word, as otherwise their clients would be compelled to instruct their solicitors to take the necessary steps to stop the infringement of 40 their Tracie Mark. He also stated that the use of the name "Alpha" by the Respondents, for any internal combustion engine not manufactured by his Company, _was calculated to deceive. Also affidavits of James Arrowsmith, George Lindsay, William Radford, Fred Hopper, and James Wortham Blake, all engaged in the engineering trade, who stated that they had known the 45 " Alpha" engines made by the Applicants, and had purchased them under that name for many years, and that" Alpha" engines meant in the trade and ·to the public the motor engines. manufactured by the Applicants, and that confusion and deception would result if other engines than those of the Applicants were sold in the United Kingdom under the name " Alpha." Supptement. j May 3,1911] THE ILLUSTRATED OFFIOIAL JOURNAL (PATENTS). 251 REPORTS OF PATENT, DESIGN, AND TRADE M:A.Ji,K CASES. In the Matter oj Hoemouller'e Trude Mark and In the Matter of the TradeMarks Act 1905. Affidavits on behalf of the Respondents we (...truncated)