Jones v Gedye

[1909] HCA 65

9 CLR 262

ON APPEAL FROM THE SUPREME COURT OF VICTORIA. Trade Mark-Falsely applying trade mark-Defence-No - intention to defraud-

Trade Marks Act 1905 (No. 20 of 1905), sec. 87.

The words "intent to defraud" in sec. 87 of the Trade Marks Act 1905 MELBOURNE,

mean intent to induce purchasers to believe that goods to which a trade mark is falsely applied, and which are manufactured by the seller, are manu- factured by some person other than the seller.

An information for an offence under the section, to which it was a defence to show that the defendant had no intent to defraud, having been dismissed,

9 CLR 263

Held, that the evidence justified the justices in finding that the defendant Special leave to appeal from the decision of the Supreme Court of Victoria (Hood J.) refused.

MOTION for special leave to appeal from the Supreme Court of Victoria.

At the Court of Petty Sessions at Cobram before R. Knight, Esq., P.M., an information was heard whereby David Jones, governing director of E. Rowlands Proprietary Ltd., on behalf of the company, charged that Leonard Gedye on 9th March 1909 at Cobram did unlawfully have in his possession for sale certain goods, to wit, lemonade, to which goods a registered trade mark was falsely applied. The information was laid under sec. 87 of the Trade Marks Act 1905.

It appeared in the course of the evidence that the defendant was the licensee of a hotel at Cobram and manufactured his own arated waters, and that on the day in question there were found in his factory, among about 20 dozen bottles filled with lemonade manufactured by the defendant, several bottles belonging to the above-named company and on which was moulded the registered trade mark of that company, which also contained lemonade manufactured by the defendant.

At the close of the evidence the Police Magistrate found that it did not appear that anyone had been defrauded that the company had not done any business in the town of Cobram for many years; that there was no reason to think that anyone expected to get something different from that supplied and that although the defendant had those bottles in his possession he acted without intent to defraud either the company or any one else, and he therefore dismissed the information.

An order nisi to review this decision was obtained by the informant on the grounds (1) that on the evidence properly admitted the Police Magistrate was wrong in holding that the defendant had acted without intent to defraud, and (2) that on the evidence and finding of the Police Magistrate the defendant should have been convicted. On the hearing of the order nisi, Hood J. held that upon the evidence the Police Magistrate was

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264

HIGH COURT justified in finding that there was no intent to defraud, and he

therefore discharged the order nisi.

The informant now applied to the High Court for special leave to appeal from the decision of Hood J.

Bryant, for the informant, referred to Starey v. Chilworth Gunpowder Co. 1; Wood v. Burgess 2.

GRIFFITH C.J. No doubt a very important question of law may be raised upon the construction of sec. 87 of the Trade Marks Act 1905, when the facts are such as to form a basis for argument. In this case the only question that arises is whether upon the particular evidence the magistrate was entitled to find that the defendant had no intent to defraud. Upon the evidence the magistrate might have come to the conclusion that nobody was likely to be deceived into believing that the lemonade sold by the defendant was manufactured by E. Rowlands Proprietary Ltd. He might have found that the circumstances of the district in which the defendant carried on business were such that persons buying lemonade from him, though it was in bottles bearing the trade mark of that company, would understand that it was lemon- ade manufactured by the defendant. If the magistrate came to the conclusion that those were the facts, he might find that the defendant had acted without intent to defraud. The expression "intent to defraud" in the section means intent to induce pur- chasers to believe that the goods which they are purchasing, and which are manufactured by the defendant, have been manufac- tured by somebody else. Upon the evidence the magistrate might properly come to the conclusion that no such intention existed. From any point of view, it is merely a question of fact, and this Court never grants leave to appeal upon mere questions of fact.

Per curiam. Leave will be refused.

Special leave to appeal refused. Solicitors, Westley &Dale.

124 Q.B.D., 90. 224 Q.B.D., 162