IN THE MATTER OF HUTCHISON'S APPLICATION FOR A TRADE MARK

538 No. 14] REPORTS OF PATENT, DESIGN, AND TRADE MARK OASES. [Vol. XLI. In the Matter of an Application fo.r a Patent by T. S. remains only the allegation that the invention is generally inconvenient. These difficult words have been applied by Sir Edward Coke to an invention for fulling in a mill and not by manual labour which was held to be '' inconvenient '' in that it would tum so many labouring men to idleness. '' During the development of the indust·rial system tbis ground of objection 5 to a patent, that it would cause unemployment, has long since been abandoned, some economists taking the view that, if unemployment be caused in one occupation by an invention, employment is thereby caused in another and, in my . view, whatever may be the truth of this contention, the fact is tha~.J.h.!!,e words in._.!;heir _£r~f!-~~-~~~}_I!-~, ~l:l:..~w obsolete and in any event cannot ~ave 10 ege<l mvent10n wlllc1i, oo' the ComptrolLer's assumpt10n, reference to an is useless and cannot work and therefore could scarcely have the effect of " throwing labouring men into idleness." In conclusion, therefore, while I am mindful of the inconvenience which might ensue by the granti~~}ent;Jri..Jciy_Q.J.?~:§~s~~· sricli'inC'OtWmd'ence 15 i~ largmy mlbgated 15y the power of the Court tO enquire into questions of utility as was done in the case of Morgan v. Seaward and in many other cases. I think that the danger of the Comptroller or myself arrogating the power t<> exclude what on the face of it is an alleged invention which satisfies the Statute, merely on some theory of mechanics or science which may ultimately 20 prove to be fallacious is far more objectionable. There are many inventions to-day of great utility; wirele$s telegraphy may be one, processes depending upon radio-activity may produce others, which might possibly have been excluded from pa.tent right!'! if the doctrine laid down by tlte Comptroller in this case _were. to be pushed too far, and therefore, with a full appreciation of 25 the importance of the principle here raised, I have come to the conclusion, after very careful consideration, that the Comptroller is wrong, that this alleged invention should receive the protection sought and that this appeal should be allowed. IN THE HIGH CoURT OF JusTICE.-CHANCERY DIVISION. 30 B~fore M1t. JusTICE ToMLIN. May 14th, 1924. IN TliE MATTER OF HuTcHISoN's APPLICATION FOR A. TRADE MARK. Trade Mark.-Application for registra.tion.-Opposition.-Si milarity of name in marks otherwise 'ais8i:inikt'r.-Woid co·mmon to the trnde.,::_Appiicaticm 35 aUowed;-~Appeal to the Courl.-Appeal dismi.ssed. 539' Vol. XLI.] REPORTS OE" PATENT, DESIGN, AND TRADE MARK CASES. [No. 14- In the Matter of Hutchison.'s AppLication for a Trade Mark H. applied to 1·egister a label bearing the brand name " Cream o' the North ,. as a Trade Mark in Class 43 in respect of Scotch whisky. The Application. was opposed by M. on the grounds (inter alia) that he was the registered proprietor of a mark registered in 1882 consisting of a label bearing the bram.d 5 name " Royal Northern Cream " and that .9. (who did not join in the opposition) was the proprietor of a registered Trade Mark consisting of a label bearing the brand naone " Cream of the North." Apart from the brand ·names all three labels were dis8imilar, and both in the Application and in S. 's registration the right to the exclusive use of the words " Cream of the North " was 10 disclaimed. H. and his predecessors in business had for many years used the label applied for, the businl3ss being that of blending whiskyr and selling it. to retail customers in his own shops in Gla&gow. M.'s headquarters were also in Glasgow, his busin.ess being wholesaLe amd export. S. carried on a local trade in London. M. also daimed common law rights in 15 the ruwnes " Royal Northern Cream " and " Northern Cream." Held, that '' C!&/9:.!!!_::.~wa,s; .the JiQp~mon appellation of 'l!!~is~'!L ir:____t~e -~?:!ide; that ·" Roya~ Northern Crea,rn " had come t~ indicate the Opponent's goods, but that it had not been proved that " Norrthe1·n Cream " bore that n"tea.ning'; thab any possibility of confusion between the labels could lie only in the ·appeal 20 to the ear; that considering all the circumstances of the case no probabiLity of such confusion ·h!a:d been sh·own., and that the appeal must be dismissed. William Hutchison applied to register a label as a Trade Mtark (No. 432,638) in Class 43 in respect of Scotch whisky. A representation of the mark applied for appears below. 3pemal IUqueur ~&k'Ja*h WHISK't 2 :§40 No. 14] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [Vol. XLI. In the Matter of Hutc,hison's Application. for a T'l'ade Mark. The right to the exclusive use of the word " Hutchison's," the words " Cream o' the North " and the let.ter " H " in the ribbon and seal device was disclaimed. The Application was opposed by Malcolm Macintyre, t·rading as Archibald Lauder &; Co., on the 'g'l'ounds (1) tha.t he and his predecessor in business had 5 for many years, particularly in Gla8gow and district, sold whisky under the name or mark o£ " Royal Nort·hem Cream "; (2) that he was the registered proprietor of a Trade Mark, N'o. 29,401, registered in 1882, the mark having the distinguishing name " :floyal Northern Cream "; (3) that H. Stodart &; Co., of Pall Mall, S.W., had for many yearg sold whisky under the name of" Cream 10 of the North," and that they were the owners of a registered Trade M1ark, No. 294,128, having the distinguishing feature " Cream of the North "; (4) that the mark applied for would be known as " Cream of the North," and that the Applicant's whisky would be asked for and sold as "'Cream of the " North," the name being the dist·inguishing feature of the mark; (5) that· 15 in view of the foregoing the mark a.pplied for was not dis,tinctive, and was also liable to lead to deception and to c;ause confusion in the trade. A represent.ation of the Opponent's ma.rk appears below. A reprenentation of Stodart's Trade Mark, referred to in the Notice of Opposition appears on the next page. No claim was made to the exclusive use 20 of the words " Cream of the North." By his Counter-Statement the Applicant relied upon (inter alia) the following grounds :-(1) That it. was a mis-st.a.tement of fact to say tha.t the words '' Cream of the North '' formed t.he distinguishing feature in the mark applied fo·r because such words were specifically disclaimed and must therefore be 25 regarded as common property. (2) That." Cream " was common to the trade and that there we.ve ,a number of regist·ered Trade Marks including the word •' Cream '' coupled with another word or words. (3) That the mark applied 541 Vol. XLI.] REPO~TS OF PATE-NT, DESIGN, AND TRADE MARK CASES. [No. 14 In the Matter of Hutchison's A·prplication for a 'frade Mark for consisted of a label bearing a combination of words and devices includincr the Applicant's surname and the init (...truncated)