Mr, Macleod opened the case for the defence with the remark that it was not possible to regard the action an easy or simple one, Although it appeared as an action between Mr. Ingenohl and the Wing On Ca.
nominal defendants, obviously it vas being defended in' the interests Messrs, Olsen & Ca., the chasers of the Manila factory, and Was usual in such circumstances, the people who really disputed ownership of the marks and the tights to use them guve the nominal defendant an indemnity and conwwueted the defence. While they could not ¢ from the local position that the defendants were Messrs. Wing On, they proposed to but the case as though it were that Messrs, Olsen & Ca, The case was brought forward as a "passing off" care, and it had to be brought in this way, there being no other remedy plaintiff could seek in China owing to the absence of any effective lay vit registration so far recognized by the Treaty Powers. This was important, because it distinguished the case from the Hongkong case and from all actions which proceeded on the lines of determining proprietary In "passing off coxes, the object of the aw wax to protect original owners of the mark and the name, and the test was, whether a defendant had done anything calculated to induce a purchaser to believe he was getting the plainti seeds. It was not necessary to prove any intention to defraud; it was enough if he could prove that what was done was calculated to deceive, There was an extraordinary cap not only in the pleadings wut in the evidence, there being, he submitted, nothing which could' be described as evidence of anything waleulated to make anyone think the seeds in question were made by plaintiff. There was nothing. using these old trademarks, Messrs. Olsen were representing what was ture in fact, viz. that they were, the successor¢ in title to the business of phaintitt.
The Rights of a Purchaser sale Gat intifY did not suggest the sale of hit property to defendants was invalid) the purchaser was entitled ty use the name and snark the vendor. There were exceptions, but as a general principle, when aman bought a business und the sued-will thereat he became entitled to use the naines and taavies was conducted there was any risk of which the vendor could complain. Defendants were not asking the court to say that Mr. _Ingenohl might not solicit the trade of old customers. Actually, it was plain-Lif who asked the court to say that, having bought his business, defendants should not be allowed to carry it on, should not be allowed to conduct the export business, whicl composed 90 per cent. of the entire business, under these names and marks, There was no ease, counsel submitted, and no authority on which plaintiff could ask his Lordship to say that a purchaser who was a complete purchaser could be prohibited from carrying on the business and representing himself as carrying it fon in succession to his predecessor, unless he was saying something that was untrue.
The Secret of Chartreuse Counsel next referred to the case lof the monks in France whose business in the manufacture liqueurs was, together with other property, confiscated by the French Government, but who successfully contested their trade rights in Eng-Innd and America. This case ely decided, he submitted, that a person could not represent himself as making an article which admittedly he could not make; it was proved beyond a doubt that the monks had a secret process in the manufactur Chartreuse, and the process cou! not be conveyed by sale simply because it was not known. the monks still held the secret after the sale, the purchaser could not possibly have the trademark. The two things had to go together.
If, counsel continued, the manufacturer of an article had two places of business and one of these was confiscated and sold, they then had a case on which there was no authority as yet. That was the interesting part of the position here. There was no decided eae, no autority so far as he had been able to find, in which the question before the court had arisen out of the sale of one of two factories, with the sequel of the vendor trying to stop the purchaser from using the names and marks. There were cases which came very near it, but not one which could be cited as an actual authority. There was no principle in aw or anywhere else on which a vendor could say to a purchaser: "You must not use what you have purchased."
The Manila Reputation The reputation of these cigars, counsel continued, wassmade by the article manufactured in El Oriente factory, under names and marks in owe for many years before plaintiff opened his Hongkong factory, s0 it Jd_not be suggested that the article which had acquired this reputation under the name "Perla det Oriente" was not the article made Manila. As to the Hongkon tion, counsel did not ce how the judge' could have found otherwise than in favour of plaintiff, the trade names having been registered there und remaining on the register.
His Lordship—There has been application by Messrs. Olsen to rectify the register?
Mr. Macleod—No. Defendants' use, counsel continued, was not that the Custodian of Enemy property in Manila sold them something in China. It was, that he sold them ery thing belonging to this business in Manila, as cited in the deed of sale. If Messrs. Olsen had represented to the public that they were selling goods manufactured by plaintiff in Hongkong he could re train them, but that was what they were exactly thereof as the successor vender. The purchaser, of ould nep be slowed 10 use vendor's name ju such into Teal them in Manila.
Sale of the Business ability for the on, but this was a matter quite different from the ques tion of "passing off" code... Plain-rit was faced with a very difficult isk in seeking to persuade the court that merely by continuation of the name onder which the old business remarks in the Macleod deal: at length with the manner in which the property was acquired Messrs. Olsen, under the direction of the American Governmen:, observing that when the business had been advertised. he might alme=!
Text read from the printed page and cleaned; old type leaves the occasional error.