IN THE MATTER OF CONCORD CANNING COMPANY'S TRADE MARK

323 Vol. XLIX.) REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [No. 8. N. V. Hollandsche Glas en Metaalbank v. The Rockware Glass Syndicate Ld. Construing Claim 1 as I do, it is not necessary for me to deal in detail with the other Claims alleged to be infringed, for I must treat them all as dependent on Claim 1. It results that I hold that neither No. 105,564 nor No. 109,782* are infringed. 5 A great deal of evidence and argument were presented to me on the topic' of validity. I do not propose to attempt to travel through it: for, on the narrow construction that I give to the two Specifications, there seems to me to be no room for holding anticipation by any of the pr·evious publications. I cannot, as I construe the documents, find ambiguity, impressed as I am with 10 the difficulty which necessarily dogs the draftsman of a document dealing with matters of this character. I cannot say that inutility is proved, though there seems some reason to suppose that the inventions have but little real commercial value. I have been a good deal troubled by the plea of prior grant, not, indeed, as between other grants and the two Patents in suit, but as 15 between the first and the second Patent; but I do not feel able to say that such a measure of identity is established between the second and the first of the two Patents as would justify me in treating the first as a prior grant of the second. A point as regards insufficiency was raised on Claim 11 of the second Patent, but, on carefully studying the second Specification, I am not 20 satisfied that it was made out. In the view I take of the case the point becomes one of minor importance. I have found some difficulty in dealing with the costs, especially as the validity of the Patents in suit has been saved in spite of the strenuous arguments of the Plaintiffs in favour of such a width in construction as could 25 hardly have failed to prove fatal to validity. , The action must be dismissed, as I have found no infringement: the counterclaim must be dismissed, as I have failed to find invalidity. I think I can best do justice by ordering the Plaintiffs to pay the Defendants' costs of the action except to the extent that those costs have been increased by the defence 30 of [nvalidity. I will dismiss the counterclaim without costs. There will be no certificate required as to any of the particulars. If the Plaintiffs desire a certificate under Section 35 as to the Claims in either or both of tJhe Patents in suit, they are, in my view, entitled to have it: in the defence invalidity is pleaded as regards all the Claims of each Patent. IN THE HIGH CouRT OF JusTICE-CHANCERY DIVISION. Before MR. JuSTICE CLAUSON. March 22nd, 1932. IN THE MATTER OF CONCORD CANNING CoMPANY's TRADE MARK. Trade Mark-Motion-Application to rectify the Register-Mark containing 40 deceptive words-Deceptive words ordered to be deleted frorn the Mark-Costs -Trade Marks Acts, 1905 to 1919, Sections 11 and 35. 324 No.8.] REPORTS OF PATENT, DESIGN, AND TRADE MARK CASES. [Vol. XLIX. In the Matter of Concord Canning Company's Trade Mark. In 1907 Concord Canning Company registered a Trade Mark consisting of a label w·hich contained the words "Norwegian Sardines" in respect of "Canned ' Sardines preserved in Oil". In 1915 it was held that the term "Norwegian "Sardines" was a false trade descr·iption with·in the meaning of the Merchandise Marks Act, 1887. In 1932 an application 'IV'as made to rectify the Register by !) expunging the Mark, or alternatively, by deleting the words " Norwegian "Sardines" therefrom. An O·rder was made that the Register should be rectified by deleting the words " Norwegian Sardines " from the Mark. In 1907 Concord Canning Company, of Stavanger, Norway, obtained registra- 10 tion of a Trade Mark, No. 295,682 in Class 42 in respect o:f " Canned Sardines ·'preserved in Oil." The Mark consisted of a representation of a label, the most prominent features being the words "The Baby Brand," a figure of a baby and the words "Norwegian Sardines." In February, 1932, Roger d' Allens applied by ·originating Notice of Motion :for an order that the Register of 15· Trade Marks should be 'rectified by expunging therefrom the Trade Mark, No. 295,B82, or, alternatively, by deleting from the Trade Mark the words "Norwegian Sardines" and that Concord Canning Company should be ordered to pay the costs of the Applicants and of the Registrar. The Registrar intimated that he did not propose to appear, provided that the 20· Applicant would undertake to be responsible for the payment of hlis costs, not to ask for any order other than that asked :for in the Notice of Motion, and to furnish him with a copy of the minutes of judgment. Leave to serve the Notice of Motion outside the jurisdiction on Concord Canning Company was 2!) granted. Affidavits in support of the Motion were made (inter alia) by the Applicant, Charles Tate Regan (M.A. (Cantab), Ron. D.Sc. (Durham), F.R.S., Director of the Natural History Museum, South Kensington) and Noel Percy Machin (Partner in S. Hanson & Son, of Eastcheap, E.C., Wholesale Grocers) from which it appeared ('inter alia) that the Applicant was a member of the firm of 30 Phillippe ·et Canaud, of Nantes, packers and exporters of sardines, and also the President of Union des Syndicates Franr;ais de Conserves de Sardines et outre Poissons;, that one of the principal objects of the said Union was to ensure, so far as possible, that fish other than sardines were not sold as sardines; that for very many years sardines ·had been exported in large quantities to 3[) England by French firms; that about twenty years ago it had been the custom of a few traders to apply the name " sardine" to brisling and sild packed in oil, but that following a decision that such use of the name " sardine " was illegal, the custom had been generally (and, so far as the trade deponents were aware, entirely) abandoned; that "sardine" . wa.sthe French name of th_~ 40 pilchard and was applied to immature p1lchards p'acked in oil; that " sild , ana -"-llrtsiliig_..,_ 'Were the 'N cirwegian names of the. fierriilg a~d sprat respectively, and were applied to immature fish of these species packed in oil; that there was no such fish as a Norwegian Sardine, and that the expression '' Norwegian Sardine" was not a term recognised in the trade, and was in 4!) itself misleading. J. H. Evans-Jackson (instructed by Wingfields Halse and Trustram) appeared :for the Applicant. 'rhe Respondents did not appear. Vol. XLIX.] REPoRTS OF ,PATENT, DESIGN, AND TRADE MARK OASES. [No. a. In the Matter of Concord Canning Company's Trade Mark. Evans-Jackson, for the Applicant: The matter is really a simple one. At one time it was quite a common thing amongst traders to descr.ibe Norwegian fish as sardines if they were small and packed like sardines. The matter came to a. head in the case of Lemy v. Watson,* and from that date it has been wrong to 5 describe as a sardine some (...truncated)