In opening the case for plaintiff, Mr. MeNeill said'the action was of ithe kind known as a "passing off" jesse: that was to say, plaintiff was not complaining of the infringement of a registered trademark; he was claiming that his common law right as proprietor of a certain trademark was being interfered with by a British company.
Lordship observed that this were an action for protection Jof a trademark, counsel would have to show him that a British subject would be -equally protected it. a Belgian court.
Mb. MeNeili—The countries which joined the Convention for the Protection of Trademarks included both cordi Article 2 of the interna-Belgium and Great. Britain. Ac-
tional convention signed at Paris in March, 1883, the same protection and legal remedy was as open to a Belgian in a British Court as to 4 British subject in "Belgian court.
His Lordship—I must go by the Order-in-Council, under "which I must be satisfied that a British sub-
JJect would have the same remedy in 4 Belgian court.
Mr. MeNeill intimated that he proposed to zoll the Belgian Consul to give evidence on this point.
His Lordship—It is quite lcciveable that a consular court China is without jurisdiction sive trade-mark protection, nnd this feourt is only concerned with what jean be done in Chi Procesding, counsel observed that defendants had stated their case on the Olsen title to the trademarks, fand, if this title failed, defend failed, Briefly argument for plaintiff would be this: that when a man had started the manufacture of goods and has for the purpose of sale put upon them certain marks, under which have acquired " reputation, assiness i+ entitled to sell' goods of the same kind under the same marks with the object of attracting to 6 goods part of the advantages earn-
manufactures.
the reputation of the original 'A Very Improper Sale Alter citing the admissions made by' defendants, counsel pointed out that the sale' was made without jaintiff's express authority: bue he was alleged to have ratified it. He was fur from saying that pla ratified or did anything apr ratification of this very impropsale of his property but, rat fication having been alleged, order to make the statement good defendants must allow that he was the owner of it.
His Lordship—He says he was uld and received cash.
Mr. MeNeill—Yes. My position ix that if any kind of official takes from a man by force, under a Jaw ch possibly justifies him, certain property, and the man afterwards receives from the person who took that property forcibly a certain sum '0: money, he cannot be said to have "ratified" the transaction.
Proceeding, counsel referred to the action which has been heard by the court at Hongkong resulting in a decision that plaintiff is the own-of the trademarks there, and that the rights in them did not pass from the Custodian to Messrs. Oleen. Defendants must now show that the tights in China did pass.
After giving details of the plaintiff's. business, ax outlined Jin the statement of claim, Mr. Me-Neill went on to say that when war broke out plaintiff was seriously embarrassed. He opened an office at Rotterdam and was afterwards detained by the Germans. He had 8 German name and was the brother of a German Admiral, and very early in the proceedings his name was placed on the black list in England, and later in the United States and in Manila. Two months after the armistice his property was sold without any reference to him. He considered it a harsh and stringent use of authority that he should be deprived of his property when the fighting was over. Immediately he got out of Germany he called for an quiry by the Belgian Government, ith the result that, as soon as }was found, that +he was a Belgian subject, he recovered property which had been ecized in Bngland end in New York. and the price of-the pro-
[perty sold in Manila; he cleared hhis charweter and got back what Fuad been ednfiseated.
The Manila Transfer Criticized Continuing in the afternoon, counsel analyzed the deed of sale From the Custodian of Enemy Pro-in Manila to Messrs. Olsen with a view to showing that the} Custodian could only transfer rights of property in the Philip. pines, and tha he had no power over property outside his jurisdiction, His Lordship here remarked' that! it was not for him in these proceedings to express any opinion upon the action of an oficial of Jansther Government.
Mr. MeNeill replied that he only proposed to state the general cirenmstonees under. which the pro perly was transferred. The deed of sale began with a misstatement in that the alien enemy to whom the property was therein stated to belone was not registered and wes legally a nonentity. Counsel wes! nog asking the Court to say anything as tu the validity of the Uranster, jor the right of plaintiff to recover his actual property instend of a price for it, but submitted it wa:
extraordinary transaction held it could take away the rights fof plaintiff over the whole world, Piainti® was deeply i by the depredations he an not shore ky man to get such a price business. Actually, the submitted to" the the vale amounted to Poros 8,000,000, and the lind, ings fand stock atone at Pesos 2,870,000, while the paid to" paiatif was Pesos 2,250,000. Counsel submitted. that the Custodian was Cuscodian for the Philippines only, and conkd sll anything outside the islands The agreement in itself spoke property "wheresoever within the Philippine Islands."
There was a curious paragraph in the statement of defence, Mr. MeNeill continued, to the effect that Jahe art of the Castodian bad ten ratified by the Treaty of Versailles, The United Staves Goverament not having ratified the Treaty, it evuld said that the' Belgisn Government, under the Treaty, 1 Jeognized the we, of an Ameican Hix Lordship intimated that est Ay. McNeil rious easier the question of legal re-Siprocty as between the Beith fant Meigian Carte, SK inst he ea, that thee rk in a Belgian Mela Court in Chinn before thin devon can f0.0m The Convention to this moving it not There mutt be rerprcity. eave ecrinin, Consular Cours Ching that have to deal with rude mark marlers at Mr. MeNeill.—Does it not lie the mouth of the defendant we plead that?
His Lordship—No. I think it is the, duty of the Court to take the point that we have no right to try this ease unless there is reciprocity. Perhaps the Belgian Consul will come and tell us whether it ix open Britich subject to take action with regard toa trade mark in Belgian Consular Court. 1) tone. T have an official com-ion from the Minister that in 1904 the Belgian Government was willing to enter into such an arrangement, but I have had further communication from the Minister. If there is such Jarearzement T have to take judicial inten of it, Me, MeNeill—Your Lordship in' a position to apply to his, Majesty's Minister as to whether such an arrangement has been made oF not.
His Lordship—tt there is such arrangement it has never: been eommunicated to me. The—wholo burden of trademaric copyright law administered in this Court is that it has got to be reciprocal.—His Lordship also commented on the fact thay the writ did not mention the nationality of the plaintif™.
Br. MeNeill, in the course of some discussion as to procedure in this respect, observed: There must be some point at which the Court} makes up its mind whether it is going to try a case or not. It, Feeertainly a most inconvenient dime lwhear the witnesses are all in evurt.
Text read from the printed page and cleaned; old type leaves the occasional error.