IN THE MATTER OF MOORE'S APPLICATIONS TO REGISTER TRADE MARKS

Syplemeftf.J THE ILLUSTRATED OFFICIAL JOURNAL (PATENTS). [Ma.y 2, 1917 154 REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES [Vol. XXXIV]. In the Matter of Moore's Applications to Register Trade Marks. IN THE HIGH CouRT oF .lusTICE.-CHANCERY DIVISION. Before MR. Jus TreE AsTBURY. January 30th, 1917. IN 'l'HE MATTER oF MooRE's APPLICATIONS •.ro REGISTER TRADE MARKS. 5 Trade Mark.-Application to register "Moore & Moore, London" as an old Marlc.-Application refused by the Registrar of Trade Marks.-Appeal;to the Court. -Application for the same mark under paragraph (5) of Section 9 of the Trade Marks Act 1905 heard by the Court. -'I'he Registrar directed to proceed with this Application. -No Order on the appeal from the Registrar's decision on the first Application, but this 10 to be without prejudice to any fresh application to register the mark as an old m.ark notwithstanding that decision. ~atley Moore and his predecessors in business had used the Since 1855 Henry words " Moore & Moore, London " as a Trade Mark in respect of pianofortes manufactured and sold by them. In 1915 H. H. Moore applied for the registration of 15 this Mark as an old Mark in Glass 9 in tespect of pianofortes. The Registrar of Trade Marks refused the Application, and the Applicant appealed by motion to the Court. The Applicant also made a Special Application for the registration of these words as a Trade Mark under paragraph (5) of Section 9 of the Trade Marks Act 1905, and asked that this Application slwuld be heard by the Court. On the two 20 matters coming on for hearing before the Court, it being established that this mark had become distinctive of the Applicant's goods, the Registrar was directed to proceed with the second Application. No order in respect of the first Application was made on the appeal, but this was to be without prejudice to any fresh applica25 tion to register the mark as an old mark. Henry (eatley Moore, and his predecessors in business, had carried on business as manufacturers and sellers of pianofortes since 1838; and since 1855 the . business had been carried on undert<:e style of" Moore & Moore." On the 23rd of March 1915 H. . Moore applied under No. 366,564 for the registration of the name" Moore & oore," with the word "London" below it; 30 as a Trade Mark in Class 9 in respect of pianofortes, and claimed that the Mark had been used by himself and his predecessors in business in the United Kingdom continuously since eleven years before the 13th of August 1875. The Application was refused by the Registrar of Trade Marks on the ground that the namH!s not Moore 35 printed or written in a distinctive way. On the 7th of October 1915 H. of the made a Special Application (No. 369,624) under paragraph (5) of Sectio Trade Marks Act 1905 for the same Mark, and asked that the Application should be he:tr.d by the Court. Tho Applicant's Case on Application contained the following statements:-" (6) Pictorial Trade Marks are very ~:~eldom if evet• ut~ed in "the pianoforte industry, the invariable or almost invariable practice of producers 40 " of such instruments being to distinguish their productions by the use o£ their 8Uf'Plsment ] May 2, 1917] '!'HE lLLUSTHATED O.l!'.I!'IClAL JOUltNAL (l'ATEN'Hl). -- ------ ---------~~--------- 155 --~ REPORTS OF l'ETENT, DESIGN, AND TRADE MARK CASNS [Vol. XXXIV]. In the Matter of Moore's Applications to Register Trade Marks. " o'Wil name or trading style which is placed on the fall of the piano and otherwise " used in connection with the trade therein. In accordance with this practice the " name ' Moore & Moore ' with the address ' London ' has been used invariably " during the last sixty years in manner aforesaid (the word ' and ' being sometimes 5 " substituted for the symbol ' & ') as the distinctive name and Trade Mark of the " pianofortes supplied by the proprietors of the said business to their customers. " The said Trade Mark has no reference to any fact relating to the goods in respect " of which it is used, except to indicate that they are the pianofortes of the pro" prietors for the time being of the Applicant's said business. The Applicant's 10 " pianofortes are not distinguished or distinguishable from those of other makers " by any special patented characteristics, but only by this maker's name and the " excellence of their make. (7) The said distinctive name and Trade Mark ' Moore " ' & Moore, London,' has for the last sixty years been and the same is habitually " and continuously used by placing the same on the pianofortes themselves and 15 "also by displaying the same in the Applicant's catalogues, price lists, advertise" ments, and in fact in every way in which it would be likely to attract the notice " of purchasers of such goods. (9) Throughout the whole of the period of sixty " years aforesaid the said distinctive name and Trade Mark ' Moore & Moore, " ' London ' has been, and the same is, universally recognised by the trade and the 20 "public as indicating exclusively that the goods to which the same is applied, or in " respect of which it is used, are goods manufactured or supplied by the Applicant. " The use of the said name is in fact, and always has been, the sole indication of the " origin of the pianofortes marked therewith, and it is by that name that the "Applicant's pianofortes alway~; have been and are ordered, bought, sold and 25 " invoiced, whenever the name has not been merely taken as implied. (10) Piano" fortes are habitually manufactured by many makers and sold to the trade and "the public, but such pianofortes of other makers and dealers have never been '' called or described by the said name and Trade Mark, the use of which has been " exclusively confined to the pianofortes of the Applicant and of his predecessors 30 " in business as aforesaid." The Applicant appealed to the Court by motionagainstthe Registrar's Decision on the first Application, and in regard to the second Application moved the Court for an Order directing the Registrar to proceed with the second Application. The two motions came on for hearing on the 30th of January 1917 before 35 Mr. Justice AsTBURY. Kerly K.C. and L. B. Sebastian (instructed by Walter Maskell ch Go.) appeared for the Applicant, and J. Austen-OartmeU (instructed by the Solicitor to the Board of Trade) appeared for the Comptroller-General as. Registrar of Trade Marks. Kerly K.C. for the Applicant.-We first applied to register" Moore & Moore" 40 as an old Trade Mark. The Registrar refused t.he Application because the words were not printed in a distinctive way. I do not admit the force of that objection. The proviso to Section 9 of the Trade Marks Act 1905 says "special or distinctive,'' whereas in the old Acts the wording was" special and distinctive." I must show that the mark is special or distinctive. I do not rely on the method of printing ; 45 I say that the expression for many years before 1875 distinguished the Applicant's pianos from those of other (...truncated)