The Sun.
London, England, 1868-01-21 00:00:00

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IMPORTANT TRADE-MARK CASE.

A case bearing on the piracy of trade-marks was
tried at the May 1867 term of the Court of Chan-
cery in Hamilton, Canada West, and judgment
was given by Vice-Chancellor Spragge on the 3d of
the following September. The proprietor of the
Perry Davis Vegetable Pain-Killer brought the ac-
tion to restrain James Kennedy, of Hamilton, from
issuing their trade-mark " Pain-killer."
The Vice-Chancellor held that the words thus
quaintly combined did form a trade-mark, and were
not, as the defendant contended, a mere term of
description. Had defendant used the designation
alone it would have been a flagrant infringement of
the plaintiff's right. But the defendant contended
that the words used by him, " The Great Home
Remedy, Kennedy's Pain-killer," differed so ob-
viously that to mistake one for the other was im-
probable. No doubt there were differences in the
bottles as well as in the labels when seen together,
but the grievance of the complaint is, of course, the
use of the words " Pain-killer."
The judgment concludes thus :—" I have not
thought it necessary to go through the cases on the
law of trade-marks which is now well understood.
The application of it to particular cases is the diffi-
culty. I will only refer to the language of Lord
Cranworth in Farina v. Silverlock ; it is peculiarly
apposite to the case before me. Judges may occa-
sionally have erred in the application of the law to
particular facts, but I apprehend that the law is
perfectly clear, that any one who has adopted a
particular mode of designating his particular manu-
facture has a right to say, not that other persons
shall not sell exactly the same article, better or
worse, or an article looking exactly like it, but that
they shall not sell it in such way as to steal (so ho
calls it) his trade-mark, and make purchasers be-
lieve that it is the manufacture to which the trade-
mark originally was applied. The practice of ap-
propriating the trade-mark of others has been re-
probated by various judges, and I have no doubt
that. Lord Cranworth used the word steal to mark
his sense of its gross impropriety. In the Collins
Company v. Cowan, Sir W. Page Wood took occa-
sion to characterise it in language not more severe
than just. I cannot conceive,' he said, of anything
short of indictable offences more discreditable than
this course of proceeding.' Ihe plaintiff is enttled
to an injunction on the terms prayed for by his bill,
and to an account as prayed. The decree will be
with costs."

Births.

LEATHAM—On the 19th inst., at Heath, the wife of S. G.
Leatham, Esq., of a son.
MARTER—Ou the 19th inst., at Devonport, the wife of

Captain Martor, King's Dragoon Guards, of a son.
PERKIN—On the 20th inst., at Surbiton, tho wife of Eobt•
B. Perkin, Esq., of a son.

Marriages.

HAWLETT—WHITFIELD-011 the 18th inst., at St. Paul's,
Newington, Surrey, Arthur B. Hewlett, Esq., Consular
Service, China, son of Thomas Hewlett, Esq., Harrow-
on-the-Hill, to Rose, fourth daughter of Richard Gullet
Wnitfield, Esq., of The Manor House, Newington,
(du rrey.
310XON—NEVILLE—On the 18th inst., at Hornsey Church,
Edward, fifth son of William M. Moson, Esq., late of her
Majesty's Inland Revenue, to Julia, youngest daughter
of Frederick Neville, Esq., of Noble-street and Hornser
rise.