Lissen Ld. v. Mutton (sued as Wholesale Components Company)

10 No. I.J REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [Vol. XLVI. In the Matter of Mellinger's Patent and In the Matter of the Ptuente of .Automatic Telephone Manufacturing 00. Ld, the method suggested by Mr. Morit» or the method suggested by Mr. Whitehead is unfair-looking at them as best I can, I come to the conclusion that I should be regarding three years as liberai and two and a half years as rather narrow. That being so, and having regard to the uncertainty of the information upon which I am invited to act, I think I shall be doing justice if I deal with these 5 four Patents in the same w,ay as that in which I dealt with the last four, and extend them all to the same date at which the original six patents expire. That being so, I propose to make an Order to that effect; and inasmuch as the first Patent does not expire until to-morrow there will be no occasion to frame any of the extensions in the form of are-grant. 10 IN THE HIG~ COURT OF JUSTICE.-CHANCERY DIVISION. Before MR. JUSTICE ROMER. July 20th, 1928. LISSEN Ln. v. MUTTON (sued as WHOLESALE COKPONENTS COMPANY). Passing Oll.-Motion lor l nterlocutorp Injunction.-Defendant consenting to motion being treated as a motion for judgment and to judgment.-Injunction fP'anted.-Order for delivery up not made. On the 16th of July, 1928, Lissen. Ld, commenced an action against Archibald Mutton, who was sued as Wholesale Com-ponents Company, claiming (1) an injunction to restrain the Defendants their servants and agents from selling or offering for sale any high tension batteries under or by reference to the name" Lissenon" or under any name or trademark or get-up calculated to lead purchasers to believe that the Defendants' batteries were the Plaintiffs' " Lissen " batteries, and from passing off any high tension batteries not manufactured by the Plaintiffs as and for the Plaintiffs' batteries, (2) delivery up of all batteries or other material infringing any injunction to be granted therein, (3) damages or an account of profits, and (4) costs. The Plaintiffs gave notice of motion for an interlocutory injunction in terms of the writ, but before the motion came on, the parties had come to terms as hereinafter stated. R. Burrell (instructed by McKenna & Co.) appeared for the Plaintiffs; the Defendant appeared in person. Burrell: The part.ies have come to terms and, subject to your Lordship's approva.l, the motion will be treated as the trial of the action, the Defendant submitting to a perpetual injunction in the terms of the Writ, and also to an order for delivery up, the payment of the taxed costs of .the action and also an order for .an inquiry as to damages. . . ROM ER J.-Is this a passing off action or a trade mark action ~ Burrell: It is a passing off action. 15 20 25 30 35 11 Vol. XLVI.] . REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [No.1. Lissen Ld, v, Mutton (sued as Wholesale Components Com,pany). 5 10 15 20 25 ROMER J.-I am not going to make an order for delivery up. The Plaintiffs are not entitled to delivery up in a passing off action; they are entitled to an injunction. Burrell : I submit that they are entitled to delivery up of the labels. ROMER J.-Not in the least. I do not know of any common law right to an order for delivery up in a passing off action. Burrell: The passing off is really the application of a label to the Defendant's battery. ROM ER J .-An injunction to restrain him is sufficient. The Plaintiffs have no property in the goods in his possession merely because he has been passing them off as the Plaintiffs', and they have no property in his labels. They will have to be content with an injunction. (To the Defendant).-The Plaintiffs are not, in my opinion, entitled to an order on you to deliver up to them the labels that are in your possession; but, if you continue to use them, you will get into very serious trouble. You understand that ~ The Defendant: Yes, my Lord. I have given them up to the Plaintiffs. ROMER J.-Then I need not have troubled about it. The habit is growing up in these passing off cases to ask for delivery up of the goods. I am perfectly sure it is wrong. However, it does not matter now, because the Defendant says that he has delivered them up. But I am not going to make any Order about it. There will be an injunction. Do the Plaintiffs claim costs ~ Burrell : Yes, my Lord, and there will be an Order for an inquiry as to damages, the costs of which will be reserved, and liberty to apply. ROMER J.-YeB. IN THE HIGH COURT OF JUSTICE-CHANCERY DIVISION. Before MR. JU~ICE CLAUSON. October 16th, 1928. LISSEN 30 35 40 45 Ln. v. HARLEY. Action to restrain passing off.-Motion for interlocutory 'l~niunction.-Plain tiffs asking for injunction in too unde terms.-llorm of injun,ct,ion. On the 30th of August, 1928, Lissea Ld commenced .an action against Ernest S.ulney Harley brading as Harley & Harleu, for an injunction to restrain the Defendants their servants and agents from sclling or offering for sale any high tension batter-ies under or by reference to the name " Lissenon " or under any name or trade mark or get-up calculated to lead purchasers to believe that the Defendants' batteries were the Plaintiffs' "Lissen" batteries, and from passing off any high tension batteries not manufactured by the Plaintiffs as and for the Plaintiffs' batteries, and for delivery up, damages or an account of profits and costs. After certain correspondence and interviews had taken place, the Plaintiffs on the 5th of October, 1928, gave notice of motion for an interlocutary injunction in terms of the writ. The motion came on for hearing on the 16th of October, 1928. R. Burrell (instructed by McKenna ~ 00.) appeared for the Plaintiffs; the Defendant appeared in person.  (...truncated)