Subsequently to the assignment to them by the Custodian, Olsen Ca., to whom the Custodian had sold the' property of the appellant's company seized during the war, proceeded to sell the products of the Manila factory in the Hongkong markets under the trade marks and yines already. referred to. The appellant then brought an action in the Supreme Court of Hongkong. lo restrain Olsen & Ca. from passing off as his goods, goods purporting to be protected by his marks, but which were not of his manufacture. Tke Court held In May, 1922, that the appellant was entitled to the relief he claimed, and awarded to him costs. No appeal was brought, from this judgment.
The respondents are a Britistt imited company carrying on busi ners as dealers in cigars at Shang hai, and they sell the cigars con signed to them by Olsen & Ca, Olsen Ca, carry on the factory and besiness in Manila just as they were carried on in the time of the appellant. The principal question in this appeal is whether they acquired right to use the trade names and trade marks which the Custodian seized and assigned to Olson & Ca, outside American territory. The boxes containing the cigars sold by the respondents in China are closed with labels exactly similar to thos of the appellant, excepting that the words "Walter E, Olsen & C
'A New Arrangement 1905 the appellant formed under Belgian La an "Association Successors," are added in very smal type after the facsimile of the Jaypellant's signature, that is, after the works "garaitizads per Ingenohl. the appellant was appointed sole "geront." Thereupon the busi the old company, including its registered trade _matks in Belgium and in every other country, were transferred to the appellant as. owner.
The appellant had before this time established at Manila a cigar fee tory, the business of which he superintended, at first for the old company and later for himself. In the end of 1908 he established a second factory at Hongkong. Largs quantities of cigars were manu: factured in both factories, and they: became well known in the East The cigars were sold under the names and marke already referred to. Subsequently the address of the Manila factory on the boxes was replaced by that of the factory it Monzkong for the cigars made there. For the rest, the "Perla," Cometa" and "Imperia del Mundo" marks were used for both kinds and the marks were Hongkone as well ax signature and the words of guarantee appeared on all boxes.
Their Lordships think that for the sale of his cigars the ap built up a valuable roodwil the circumstances to which they will now advert, he has had the misfortune to have had hard treatment under war legislation, but that fact does not affect either his righty or those of the respondents. On October 6, 1917, the Us The Points at Issue The writ in this action was issued in November, 1922, against the respondents. themselves and Olsen Ca. The case made for the plainti was (1) that the assign, ment by the American Custodian did not affect rights outside the Phitippine Islands; (2) that its recognition by a British Court would be to give effect to penal legislation for the United States; and (3) that the sale of figare under the nantes and marke in question would lead the public in China to think toat thes: Were purchasing the appellant's goods. On all these issues I Majesty's Supreme Court at Shang hai decided against the appellant.
Meantime, in August, 1922, the Jappeiiant had sued Olsen & Ca. in' the Supreme Court of the Philippine Islands to recover the carts awarded him by the Court in Hongkong. The Trial Judge electd. Jed in the appellant's favour and the Court of Appeal reversed this judg ment, holding that the judgment of the Tiongkong Court was erroneous and not binding on the Philippine Courts. Since then, on appeal. to tite Supreme Court of the United States, an appeal from this decision has been allowed. Holmes, J., who. delivered the judgment " of" the Supreme Court, held, in language Jot characteristic precision, that, would be improper for a. foreign [Court to review the judgment of the Hongkong Court about the rights of the appellant in the trade mark
Text read from the printed page and cleaned; old type leaves the occasional error.