MACPHERSON v. BROWN & Co

063-NLR-NLR-V-08-MACPHERSON-v.-BROWN-&-Co.pdf


( 333 )
MACPHERSON v. BROWN & Co.
P. C., Colombo t 95,955.
(The Gandy Belting Case.)
False trademark—Application—Oraldescription—Pricelists—Mer-
chandise Marks Ordinances, No. 13 of 1888 and No. 14 of 1898,ss. 8 a) (<*)» d (3), and 4 a) (*).
The provisions of section 3 (1) (d) and of section 3 (3) of theMerchandise Marks Ordinances, No. 13 of 1888 and No. 14 of 1893,'' which make it an offence to sell goods to which a false tradedescription is applied, do -not apply where the description is entirelyoral.
The complainant asked a salesman in the accused's shop forGandy’s belting pointing to an illustration in the accused's pricelist, which indicated that the belting came from Seacombe, Cheshire.The salesman delivered to the complainant Gandy's belting madein America, and at the same time handed to the complainant acash sale memorandum, which was as follows:—
Rs. c.
41} ft., 4 in. by 4 ply, Gandy’s belting…48 60
Less commission…………4 86
43 74
Held (affirming .the judgment of the Magistrate), that there wasno “ application " of a false trade description within the meaningof the Ordinance.
A
PPEAL from an acquittal. The facts are fully set forth in thejudgment of Wendt, J.
Domhorst, K.G. (H. J. C. Pereira and ElUott with him), forcomplainant, appellant.
Walter Pereira, K.C. (H. Jayewardene with him), for accused,respondent.
_j Cur. adv. vult.
15th January, 1906. Wendt, J.—
The defendants, are who a company limited by shares, werecharged with having sold to the complainant certain machine belt-ing to which a false trade mark description was applied, describedas an offence punishable under section 3 (1) (d) and section 3 (2) of“ The Merchandise Marks Ordinances, 1888 and 1892.” TheMagistrate acquitted them, and the complainant with the sanctionof the Attomev-General, has appealed.
25-
1906.
January 15.
( 384 )
1906. The facts, shortly stated, are these:—The prosecutor is the Chair-Januaty 15. man and Managing Director of the Gandy Belt Manufacturing Com-Wbtot J P&ny> Ltd., of Seacombe in the County of Cheshire, England, whomanufacture machine belting out of cotton. There is an American,company formed some years after the English company, and knownas the Gandy Belting Co., carrying on business at Baltimore, UnitedStates of America, who also manufacture such belting. For a num-ber of years ending with 1903 the defendants had been agents in Cey-lon for the English company's belting and had stocked and sold thatmake exclusively. Up to that time the American company's .beltingwas unknown in Ceylon, while complainant's goods enjoyed a fairljylarge sale and were well known as Gandy belting. In 1903 thedefendants began, while still holding large stocks of the English belt-ing, to import the American make, but the latter was never mentionedin their price lists, and were never advertised until after the institu-tion of this prosecution, whereas the complainant's goods wereprominently specified and described in the price lists by illustrated^advertisements. At the date of the alleged offence the defendantsstill held an unsold balance of the English belting stocked in 1903,but not the particular size which was asked for by complainant.On the 11th November, 1905, the complainant went into defend-ant's shop and asked a salesman, named Wink, whether theystocked Gandy's belting and was answered in the affirmative. « Hethen asked to see defendant’s catalogue and was given the “ GeneralPrice List " (marked B). He turned up page 111 and said that waswhat he wanted, and asked for 41£ feet of 4 inch by 4 ply of thatbelting, at the same time putting a pencil mark against the printeditem specifying that particular siz$ and its price. The salesman hadthe belting, which complainant did not then examine, wrapped upand put in complainant's rickshaw, and having received paymenthanded to complainant the bill A, which in its material part wasas follows: —
Cash Sale Memo.
Colombo, November 11, 1905.
To Brown & Co., Ltd., General Merchants and Importers.
Bs. c.
41J ft., 4 in. by 4 ply, Gandy’s belting…48 60
Less commission……4 86
Bs. 43 47
Paid.—J, Wine.
( 385 )
The complainant then left the shop, and on reaching the hotelexamined the belting and found that it was after American make.
There being no question of the sale of this piece of belting to thecomplainant, the only question is whether there was a false tradedescription “ applied to it/’ The prosecution alleges that there wasapplied to it the description printed .on page 111 of defendant'sprice list. There can be no doubt that that description was a “ tradedescription " within the meaning of the Ordinance, for it contained,in the words *' Works, Seacombe, Cheshire," an " indication " as to theplace in which tjie goods were made [section 4 (1) (6) ]. There isequally no doubt that that description was false. Was it then appliedto the belting sold ? In deciding this question great assistance is tobe derived from the decisions in England under " The MerchandiseMarks Act, 1887 " (50 and 51 Viet. C. 29) which is substantially re-enacted in our Ordinances. It is now well settled that a mere oraldescription cannot amount to a “ trade description " under the Act.Coppen v. Moore (67 L. J. Q. B. 690; (1898) 2 Q, B- 300). It has,however, been ruled that a false trade description contained in abill or invoice delivered with the goods sold may* be regarded asapplied to those goods. In the present case it is conceded that thebill A contains no false trade description, and reliance is placedsolely on the price list, but the cases regarding invoices and billslay down principles which equally apply to the circumstances weare considering, and I shall therefore proceed to examine thesecases in the order of their decision.
In Budd v. Lucas (60 L. J. M. C. 95; (1891) 1 Q. B. 480) a customerordered the defendant, a brewer, six barrels of beer, and in pursuanceof the order the defendant's drayman delivered six? casks of beer andat the same time left at the customer’s house an invoice in which thecasks were described as “ barrels." This was a false trade descrip-tion, inasmuch as a " barrel " in the beer trade contained 36 gallons,whereas one of the casks contained only 34. The Justices held thatthere had been no " application " of the description to that cask.Upon a case stated, Pollock, B., and Charles, J., htfld that a physicalapplication was not necessary to constitute an “ application " underthe Act. Pollock, B., said: " No doubt the description must be usedin connection with goods, but I think we should be cutting down theintention of the. Act if we were to hold that the delivery of an invoiceor other description of goods at the time of or immediately after Hiedelivery of the goods themselves was not a use in connection with thegoods within the meaning of the section," and Charles, J., added." I think that the delivery of the invoice with the goods might be ause of a false trade description of the goods delivered." Observe
1900.
January 15.WSKDT, J.
( 886 )
that the invoice was prepared for the purpose of the sale, and theJanuary 16. description in it was a description of the goods the subject of theWskdt, J. sale, the goods being actually delivered with it.
In Goppen v. Moore, already referred to, the purchaser asked foran English ham, and on being shown certain hams and told they were” Scotch ” hams, said they would have one. The invoice made outand delivered with the ham described it as M Scotch,” whereas intruth it was an American ham. The Magistrates having convictedthe vendor of having sold goods to which a false trade description hadbeen applied, the Queen’s Bench Division held that the Act did notapply to trade descriptions purely verbal, but that the word“ Scotch ” in the invoice made the description employed morethan a verbal one, and (upon the authority of Budd. v. Lucas) thatthat description had been *' applied ” to the goods sold.
In Cameron v. Wiggin (1901) 1 K. B. 1, the invoice delivered withthe goods to the purchaser of certain mutton described it as “ N. M.,”which at the time was explained to the purchaser as meaning ” NewZealand mutton,” which was what he had asked for. ” N.M.” wasnot a description known to the trade, but it was nevertheless held tocome under the definition of a ” trade description ” in the Act. Theearlier cases having settled that the description in the invoice mightbe regarded as applied to the mutton, the question was whether parolevidence was admissible to show the meaning attributed by the..salesman to the’letter ” N. M.,” and the Court held that it wasadmissible.
In the present case the description relied upon by the prosecutionwas not prepared for the purpose of the sale, which is the subject ofthe charge, nor was it a description of the particular article sold.For this the price list (a quarto volume of 250 pages) was not likean invoice or bill, a document usually delivered with the goods to thecustomer. It was a general advertisement of all the defendant com-pany’s wares. An invoice was actually made out at the time of saleand delivered with the goods. The complainant on entering theshop had asked for Gandy’s belting, and the invoice specified onlyGandy’s belting. That was the only written description whichwas applied to the goods the subject of sale, and that is admittedlynot a false description.
In Cameron v. Wiggin the vendor had issued a handbilladvertising, among other description of meat, Canterbury NewZealand mutton and lamb of the very best qualify, and thecustomer had produced this handbill and asked for the New Zealandmutton; yet the case seems to proceed upon the footing that thatwould not have "been enough to rest upon the * insertion at the
( 887 )
purchaser’s request of the letters “ N. M.” in the invoice in orderto indicate the fact that the mutton was New Zealand.
In the present case the complainant might have ashed for the addi-tion to his bill of words or signs indicating that the belting camefrom Seacombe or was made in England, as the purchaser did inGoppen v. Moore and Gameron v. Wiggin. He did not do so, andthere was therefore no false trade description applied to the belting,inasmuch as I hold with the Police Magistrate that the printeddescription in the price list was not “ applied ” to the subject ofsale within the meaning of the Ordinance.
I therefore dismiss the appeal.
1906
January 15.Wbnd& J.
• –