Scottish Court of Session Decisions

The Dunlop Pneumatic Tyre Company, Limited, having their registered office at 14 Regent Street, Glasgow, brought an action against the Dunlop Motor Company, Limited, having their registered office at 39 John Finnie Street, Kilmarnock, in which they sought to interdict the respondents “(1) from carrying on business under the style or title of ‘The Dunlop Motor Company, Limited,‘ or under any other or similar style or title comprising the word ‘Dunlop,’ or any style or title calculated to deceive or mislead the public into the belief that the respondents’ company is the same company as the complainers’ company, or is in connection therewith, or that the business of the respondents’ company is the same or in any way connected with the business of the complainers’ company, and (2) from passing off or attempting to pass off the respondents' company's goods as and for the goods of the complainers' company, and also from issuing or publishing any catalogues, labels, circulars, showcards, advertisements, or billheads, or from using any trade name comprising the word ‘ Dunlop ’ in connection with any goods not being goods manufactured or sold by the complainers' company….”

They averred, inter alia—“(Stat. 1) The complainers are a limited company, incorporated on 6th May 1896. The objects for which the said company was established are, inter alia, as follows:—‘ ( a) To acquire and take over as a going concern the undertaking of the Pneumatic Tyre Company, Limited (incorporated in 1894), and all or any of the assets and liabilities of that company, and also certain patents, and with a view thereto to enter into and carry into effect, with or without modification, the three several agreements in the terms of the drafts referred to in clause 3 of the articles of association of this company.’ ‘( b) To carry on the business of manufacturers and of dealers in and letters to hire of pneumatic and all other tyres and wheels of cycles, bicycles, velocipedes, and carriages and vehicles of all kinds, and all machinery, implements, utensils, appliances, apparatus, and things capable of being used therewith, or in the manufacture, maintenance, and working thereof respectively, or in the construction of any track or surface adapted for the use of any

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such tyres and wheels.’ ‘( c) To carry on the business of manufacturers of, dealers in, and letters to hire of cycles, bicycles, tricycles, velocipedes, perambulators, bath-chairs, horse-carriages, motor or horseless carriages, and carriages and vehicles of every description, and all component parts thereof respectively, and also all apparatus and implements and things for use in sports or games’ (Stat. 2) The patents known as the Dunlop patents, which were owned and worked by the complainers and their predecessors, caused an unprecedented development in the cycle, motor, and carriage industry, in which the complainers and their predecessors have taken a leading part. The complainers do a large business in every part of the United Kingdom, particularly in the manufacture and sale of tyres, pumps, inflators, and other parts and accessories for motors and cycles. They are also manufacturers of motor tyres and wheels and other motor accessories, such as rugs and motor clothing generally. (Stat. 3) In 1888 the word ‘ Dunlop ’ was first used by the predecessors in title of the complainers' company to designate the goods manufactured by them. Since that time the word has been in continuous commercial use as designating generally the goods manfactured by them. The complainers do a large business not only in the manufacture and sale of tyres but also in the manufacture of all accessories used in relation to motor cars and bicycles, and in numerous other goods, rubber and otherwise, used in and about motoring and cycling. These include tyres of all kinds, wheels for motor cars, valves, pumps or inflators for motors, repairing outfits for motor car tyres, indiarubber matting, waterproof clothing, and indiarubber goods of all kinds. All these goods are associated with the name ‘ Dunlop.’ The word ‘Dunlop ’ is stamped on all or most of them. In the case of tyres there is also impressed a bust of the inventor J. B. Dunlop, which forms the trade-mark. The name is associated by the public and in the cycle and motor industry with the complainers’ company and their goods. It is of great value to the complainers, many prizes have been awarded for ‘ Dunlop ’ motor tyres, and they have repeatedly restrained its use by other companies and firms in the cycle and motor trade. The Dunlop Rubber Company, Limited, referred to in the answer, is a subsidiary company of the complainers, and is owned and controlled by them. (Stat. 4) The respondents are a limited company, incorporated on 1st July 1904. Their purposes as defined by their memorandum of association are, inter alia, as follows—‘(1) To acquire the motor branch of the business of R. & J. P. Dunlop, cycle and motor merchants and manufacturers, Kilmarnock, and with that object to execute and carry into effect a minute of agreement between R. & J. P. Dunlop, cycle and motor merchants and manufacturers, Kilmarnock, and Robert Dunlop and John Fisher Dunlop, the individual partners of the firm, of the first part, and this company of the second part, a draft whereof has been approved by the subscribers hereto.’ ‘(2) To carry on the business of motor manufacturers’ agents and dealers, and all or any other trades or businesses of any kind which can be conveniently carried on by the company in connection with such business or any part thereof, or the carrying on of which may, in the opinion of the directors, be likely to be beneficial to the company.’ ‘(3) To manufacture, buy, sell, repair, convert, let on hire, or otherwise deal in motors, cycles, cars, carriages, carts, waggons, vans, and vehicles, and their component parts and accessories, and fittings and conveniencies of all kinds which can be conveniently dealt in by the company, and to carry on any other businesses, whether manufacturing or otherwise, which can be conveniently carried on in connection with any of the company's objects.’ The respondents carry on business in terms of these purposes, and deal, inter alia, in tyres, pumps, inflators, wheels, rugs, and other parts and accessories of cycles and moters. They are registered and carry on business under the style and title of the ‘Dunlop Motor Company, Limited.’ (Stat. 5) The adoption by the respondents of the style or title ‘Dunlop Motor Company’ is calculated to deceive the public into purchasing the goods of the respondents in the belief that such goods are the goods of the complainers' manufacture, or that the respondents and their goods are associated with the complainers' company. (Stat. 6) The complainers believe and aver that the respondents have adopted said style and title for the purpose of passing off their goods as and for the goods of the complainers, and for the purpose of taking advantage of the reputation which the goods manufactured and sold by the complainers have acquired, and for the purpose of associating their business with the business of the complainers, and that they are so passing off their goods as goods of the complainers' manufacture….”

They pleaded, inter alia—“(1) The adoption by the respondents in their business of the style or title of ‘The Dunlop Motor Company, Limited,’ being an infringement of the complainers' rights, interdict should be granted as craved. (2) The adoption of said style or title being calculated to deceive the public into purchasing the respondents' goods in the belief that such goods are the goods of the complainers, interdict ought to be granted as craved. (3) The respondents having adopted said style or title for the purpose of taking advantage of the reputation which the goods manufactured and sold by the complainers have acquired, and for the purpose of associating their business with the business of the complainers, interdict ought to be granted as craved.”

The respondents in a statement of facts averred, inter alia—“(Stat. 1) The respondents' company was incorporated on 1st July 1904. As the respondents' memorandum of association bears, the respondents' company was formed and incorporated for the purpose, inter alia, of acquiring the motor branch of the business of R. & J. F. Dunlop, cycle and motor merchants, Kilmarnock.

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(Stat. 2) Of the seven shareholders who form the respondents' company four of them are Mr Robert Dunlop, Mr John Fisher Dunlop, Mr Alexander Dunlop, and Mr David Dunlop. These four gentlemen are all engaged in the business of the respondents' company, and they hold among them four-fifths of the shares of the respondents' company. (Stat. 3) The name ‘Dunlop’ has been used by the respondents' predecessors (Messrs R. & J. F. Dunlop) for eight years in connection with the cycle and motor business carried on by them. That firm commenced business in 1897 in premises situated in Bank Place, Kilmarnock, and removed to their present premises at 39 John Finnie Street in November 1898, where the firm still continues to carry on the business so far as not acquired by the respondents' company. The respondents' predecessors have been engaged in the motor business (that is, in the dealing in complete motors, cycles, tricycles, and cars, and the repairing of these things) for seven years, and nave during that time peaceably enjoyed the free use of the name ‘Dunlop’ under the firm name of R. & J. F. Dunlop. The partners of that firm were and still are the said Robert Dunlop and John Fisher Dunlop. (Stat. 4) The said Mr Robert Dunlop and Mr John Fisher Dunlop are the directors of the respondents' company. (Stat. 5) The respondents and their predecessors have become identified with the manufacture, sale, and repair of motors and motor vehicles, and the name is of great value to them in this respect. The respondents, as matter of fact, have never used any trade name comprising the word ‘Dunlop’ in connection with any goods manufactured or sold by them where that name has been applied to any like goods advertised as manufactured or sold by the complainers. (Stat. 6) The complainers have never dealt in or manufactured motors or motor cars complete, or the engines or bodies of such cars, or even repaired such cars.… (Stat. 10) The adoption of the name ‘Dunlop’ in connection with the respondents' company was in order to retain the goodwill of the business in connection with the manufacture, repair, and sale of motors, which their predecessors had built up during the seven years they had been engaged in the business, and also in order to preserve the name in connection with a new system of transmission gear for motors, which is believed and reported upon to be a very valuable one. This system is the invention of the said Mr John Fisher Dunlop, who, as already stated, was a partner of the respondents' predecessors, and is one of the two directors of the respondents' company. The complainers do not manufacture or deal in the principal part of the respondents' business, viz., the manufacture and sale and repair of motors of all descriptions, whether moving or stationary. The sale of tyres and accessories such as are dealt in by the complainers' company is only incidental to the business of motor manufacturers, and the respondents are not limited to the complainers' goods for such accessories….”

They pleaded, inter alia—“The complainers' averments are neither relevant nor sufficient to support the prayer of the note.”

A proof was taken by the Lord Ordinary (Dundas), the result of which is indicated at length in his opinion and those of the Judges of the Second Division infra.

The material facts proved were that the complainers were chiefly known to the public as manufacturers of the famous “Dunlop” tyres for bicycles and motors, the patent for which had recently expired; that under their memorandum and articles of association they had the widest powers of manufacturing everything connected with motors and motors themselves; that they had never manufactured motors, but did a considerable trade in motoring accessories such as wheels, pumps, valves, &c., for none of which, however, had they established an exclusive right to the name of “Dunlop.” The respondents on the other hand had not sufficient plant or capital to manufacture motors, but had good prospects of establishing a business in repairing motors, selling motors on commission, and in particular selling all kinds of motoring accessories. There was no suggestion in the proof that they had ever represented that goods of their manufacture were goods manufactured by the complainers, and no proof that their motive in choosing the name of their company had been to obtain a fraudulent advantage from the reputation of the complainers. There was also practically no evidence that any member of the public had been misled by the name.

On August 1, 1905, the Lord Ordinary (Dundas) pronounced the following interlocutor:—“Finds that the adoption by the respondents in their business of the style or title of ‘The Dunlop Motor Company, Limited’ is an infringement of the complainers' rights, and that such adoption is calculated to deceive the public into purchasing the respondents' goods in the belief that such goods are the goods of the complainers, and into confounding the respondents' business with that of the complainers: Therefore interdicts, prohibits, and discharges the respondents, their servants and agents, from carrying on business under the style or title of ‘The Dunlop Motor Company, Limited,’ or under any style or title calculated to deceive or mislead the public into the belief that the respondents' company is the same company as the complainers' company, or is in connection therewith, or that the business of the respondents' company is the same as, or in any way connected with, the business of the complainers' company, and from passing off or attempting to pass off the respondents' company's goods as and for the goods of the complainers' company: Quoad ultra refuses the prayer of the note … and decerns.”

“ Opinion.—In this case interdict is sought by the Dunlop Pneumatic Tyre Company, Limited, against the Dunlop

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Motor Company, Limited. The complainer company was incorporated in 1896. Its memorandum and articles of association are No. 43 of process, and the objects of its formation are, sufficiently for the purposes of the case, summarised in Statement I. The complainers aver (Statement III) that ‘in 1888 the word “Dunlop” was first used by the predecessors in title of the complainers' company to designate the goods manufactured by them. Since that time the word has been in continuous commercial use as designating generally the goods manufactured by them. The complainers do a large business not only in the manufacture and sale of tyres but also in the manufacture of all accessories used in relation to motor cars and bicycles, and in numerous other goods, rubber and otherwise, used in and about motoring and cycling.’ They enumerate certain classes of goods which they say are associated with the name ‘Dunlop,’ and add that ‘the name is associated by the public and in the cycle and motor industry with the complainers' company and their goods.‘ The respondent company was incorporated on 1st July 1904. Its memorandum and articles of association form No. 28 of process, and the objects of its formation are, sufficiently for present purposes, recited in Statement IV. The company's registered title is ‘The Dunlop Motor Company, Limited.’ In Statement VI the complainers ‘believe and aver that the respondents have adopted said style and title for the purpose of passing off their goods as and for the goods of the complainers, and for the purpose of taking advantage of the reputation which the goods manufactured and sold by the complainers have acquired, and for the purpose of associating their business with the business of the complainers, and that they are so passing off their goods as goods of the complainers' manufacture,’ and interdict is craved accordingly.

“Before proceeding to consider the contents of the proof it will I think tend to clearness if I endeavour in the first place to summarise what I believe to be the legal principles and rules applicable to such cases as the present, and then, when that has been done, to apply the law to the facts which have been proved. The fundamental principle underlying the whole matter is ‘that nobody has any right to represent his goods as the goods of somebody else’—( per Lord Halsbury, L.O., in Reddaway, 1896, A.C. 199–204, followed by Lord Alverstone, M.R., in Valentine Meat Juice Company, 1900, 17 R. P. C. 673— 679. See also per Lord Langdale, M.R., in Croft, 1843, 7 Beav. 84). It has been deduced as a corollary from this that if a complainer can show that a name—whether his own or a fancy name or other name—has become identified by the public user with his goods in the market, and that it is being rased by another under such circumstances or in such manner as to suggest that the goods which that other is selling are in fact the goods of the complainer, the latter will be entitled to interdict, the Court protecting him against any attempt to trade on or take benefit from the reputation which he has built up for himself— Valentine Meat Juice Company (sup. cit.); Reddaway (sup. cit.). But in order to obtain relief it is not, as I understand, necessary for the complainer to prove that the respondent is trading in specific articles in which he also deals; it may be enough if the result of the respondent's use of the name, which has acquired a secondary signification in the trade in connection with the complainer's business and his goods, is such as would in the ordinary course of human affairs be likely to result in the confounding of the respondent's business with that of the complainer, or the belief that the one is connected with the other. And it has been decided that this rule will apply to cases where the general character of the business carried on by the respondent is not identical with but materially different from that of the complainer. Thus in Eastman Photographic Materials Company, Limited, 1898, 15 R. P. O. 105, the plaintiffs obtained an injunction restraining a cycle company from using in its cycle business the name ‘Kodak’, which had become identified in the market with the complainers' photographic business. In Dunlop Pneumatic Tyre Company, Limited v. Dunlop Lubricant Company, 1898, 16 R. P. C. 12, the present complainers successfully restrained the defendant company from using the name ‘Dunlop,’ in spite of the fact that they (the plaintiff company) did not in fact sell oil or lubricants, though they had power under their constitution to do so. I may refer also on this matter to Valentine Meat Juice Company, sup. cit., especially p. 682; Eno v. Dunn, 15 A.O. 252 (a trade-mark case); Dunlop Pneumatic Tyre Company, Limited v. Dunlop-Truffault Cycle and Tube Manufacturing Company, Limited, 1896, 12 T.L.R. 434. It has further, I think, been settled that it is no conclusive answer upon the part of a respondent to say, and say truly, that the name he is using is his own name; and that case does not differ in principle from those where another—perhaps a fancy—name is in dispute. Thus, in Valentine Meat Juice Company the then Master of the Rolls, in dealing with the rights of parties where the name of an individual is being used, observes (17 R.P.O., at p. 680), that ‘although it is of course more abundantly necessary in that case that it should be clearly established that the name has come to designate in the market the plaintiff's goods, when that is established I do not think there is any difference between the rule of the law that ought to be applied or the remedy that ought to be granted where such a right has been infringed.’ In Reddaway Lord Herschell (1896, A.O., at p. 211) quotes with approval the language of James, L.J., in Massam v. Thorley's Cattle Food Company, 14 Ch. Div. 748, where his Lordship said— ‘ Burgess v. Burgess ( 3 D. M. and G. 896) has been very much misunderstood if it has been understood to decide that anybody can always use his own name as a description of an article,

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whatever may be the consequences of it, or whatever may be the motive for doing it, or whatever may be the result of it.’—(See also the recent ca se of Abel Mortal, Limited, 1903, 20 R. P. O. 429, affirming 19 R. P. O. 557). Lastly, it has been laid down that in order to a complainer obtaining interdict it is not necessary to prove a fraudulent intention on the part of the respondent— Cellular Clothing Company, 1899, A.C. 326, Lord Chancellor, 334,33o. Fact rather than intention must be regarded, and it is sufficient for the complainer if he can show that the result of the respondent's actings or projected actings does, or may be reasonably expected to, result in a confusion between his goods and those of the complainer, or in a supposed connection between the respondent's business and that of the complainer, owing to the manner in which the respondent is using a name to which the complainer has succeeded in attaching a secondary signification in the trade, as indicating his goods or his business. The modes, honest or dishonest, by which such results may be achieved or sought to be achieved are of course manifold—as witnessed by the number and variety of reported cases, especially in England—but the general principles or rules of law applicable to cases like the present are, I conceive, those which I have endeavoured to sketch in outline.

Coming now to the facts, I am of opinion, in the first place, that the complainer company has fully established that it has succeeded in impressing upon the word ‘Dunlop,’ as known and used in the cycle and motor industry, a secondary and well-recognised meaning, as being identified with that company and its goods. No doubt the chief item of the company's business is tyres, but it also makes and sells under the name ‘ Dunlop ’ many other things accessory to the motor as well as to the cycle trade, as described by the manager Mr Baisley, and in this it has had the assistance of the Dunlop Rubber Company, and other companies subsidiary to and entirely constituted by the parent Company. The complainers have expended enormous sums in advertising in the name of ‘ Dunlop,’ and I do not doubt that that name is an asset of the highest value to them—all the more so because the Dunlop patents are all now expired. Upon this first point therefore I am in favour of the complainers.

In order to a proper understanding of the remaining matters it is necessary to give a succinct account of the circumstances which preceded and attended the formation of the respondent company. In 1898 two brothers, Robert and John Fisher Dunlop, entered into partnership under the firm of R. & J. F. Dunlop. Their office was, and is, at 39 John Finnie Street, Kilmarnock. Their business was that of cycle agents and cycle repairers, and to some extent cycle manufacturers, and they also sold tyres, tubes, and other accessories of the cycle trade. They had also a motor tricycle, and did something in the way of repairing motor cycles, and occasionally motor cars, but they did not make or sell motor cars. On 1st July 1904 ‘ The Dunlop Motor Company, Limited,’ was incorporated. Its memorandum and articles of association are No. 28 of process. The capital of the company was 500 shares of £1 each. The principal shareholders are the two Messrs Dunlop, already referred to, and the others are their brother Alexander, a builder, their brother David, a mechanic, their aunt Mrs Fisher, the Rev. W. S. Reid, and their solicitor, Mr Barnett. The directors of the company are Mr Robert Dunlop and Mr John Fisher Dunlop. Its office is 39 John Finnie Street, Kilmarnock. The primary objects of the company were to acquire the motor branch of the business of R. & J. F. Dunlop, in terms of an agreement, and, shortly put, to carry on the business of motor manufacturers, agents, and dealers. By the said agreement, which is a somewhat strange document, the partners of the firm agreed to sell to the company the motor branch of the said business, including good-will and whole property belonging to it, its motor machinery and plant, fittings, utensils, and stock-in-trade, as per inventory annexed, and also the sum of £150 in cash. The ‘price’ was to be £500, payable by the allotment ‘to the first parties and their under-mentioned nominees’ of 500 shares in the company, ‘which shares shall be deemed for all purposes to be fully paid up’ in the proportions stated in the agreement. An advertisement, conceived in terms of preposterous exaggeration, which was drawn up by the Messrs Dunlop without the advice or knowledge of their solicitor, was published immediately after the formation of the limited company. I refrain from further comment upon this document. Now the professed objects for the attainment of which this technical severance of the motor branch of the business of Messrs R. & J. F. Dunlop was effected by the creation of The Dunlop Motor Company, Limited, were three in number, viz., ( a) to obtain fresh capital; ( b) to obtain adequate premises for the motor business; and ( c) to exploit an invention by Mr J. F. Dunlop in relation to transmission gear for motors. But the strange thing is that no one of these objects has to any material extent been achieved, ( a) The amount of ‘fresh capital’ obtained was no more than £150. It appears by the way that the Rev. Mr Reid faded to pay his £50, and Messrs R. & J. F. Dunlop had to find that money for the company. (6) The only working premises of this company are certain subjects in Kilmarnock, which are held upon a verbal sub-let of a lease which had but four years to run, and upon such premises it would be manifestly absurd to lay down extensive plant and appliances, (c) The invention was not in fact assigned to the company, and it appears now to be of doubtful value. The brothers Dunlop explain that they desired to start the limited company upon a modest scale, but that they had it in view if all went well to increase their capital as they had taken power to do under the constitution of the company by the aid of friends. The whole history of the company is of a

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nebulous and unsubstantial quality. It is not at present in a position to manufacture one motor car, and has not attempted to do so. The business it carries on is scarcely if at all different from the old sort of business done by the firm before the creation of the company. I am bound to say that the impression left upon my mind is that there must or at least may have been objects in view other than those which have been stated as inducing the inception of the company, and there are traces in the evidence that there was at all events an idea that it was destined to fall into the hands and under the control of outside ‘friends’ of one sort or another. The impression to which I have alluded is not lessened by the fact that a company named the Dunlop Maritime Motor Company, Limited, has still more recently been floated by the Messrs Dunlop and certain nominees nearly but not precisely identical with those who make up the registered members of the Dunlop Motor Company, Limited—that the Dunlop Maritime Motor Company, Limited, has a capital of £1000, not paid up, and that no very substantial reason so far as I gather has been stated for its existence. But I do not desire to pursue this topic further, because, as I have already pointed out, the case can be decided, if the grounds upon which I proceed are well founded, apart from any considerations as to bona fides or the reverse, upon the part of the Dunlops.

“The respondents deny that the complainers have succeeded in establishing that the name ‘ Dunlop ’ has acquired any special or exclusive significance in connection with their goods or business; and upon this point, as I have already stated, I am against them; but they further maintain that even if such a signification had been proved to exist as regards the complainers' tyres, no interdict should pass against the respondents, because, as they allege, their business is a motor business proper and not a business principally dealing with tyres, and the classes of customers to which the parties respectively appeal are quite separate and distinct. A rough comparison of Nos. 43 and 28 of process shows that, as regards the powers taken by the two companies there is no very striking or substantial difference, but that, in the case of the complainers' company tyres are put in the forefront and motor business proper rather in the background, while in the respondents' constitution the position is practically reversed. The more important comparison, however, is between the things actually done by the companies respectively. The complainers, as already pointed out, have many branches of business besides the matter of tyres. The respondents on the other hand, despite their title, cannot truly be described as a motor manufacturing company—they have neither money, plant, nor premises to enable them to make a single car—and they do at present deal in certain classes of goods and carry on certain lines of business in common with the complainers.

In my opinion the titles of the two companies bear such a similarity to one another that the one would ‘in the ordinary course of human affairs’ be ‘likely to be confounded with the other’—(see per James, L.J., in Hendriks, 17 Ch. Div. 638, 645). I think that the general character of the businesses is not less similar but much more similar than was the case in several of the decisions to which I have already referred upon this point. But the respondents further argued that they were entitled to use the word ‘Dunlop’ in the name or title of their limited company because it is in fact their own name. I have already dealt generally with the law upon this matter. I think that if they had chosen to call their new company ‘The R. & J. P. Dunlop Motor Company, Limited,’ they would probably have been entitled to do so, because the company's name would then have been practically the same as that of the firm under which they had for years previously been in use to trade—(see Tussaud, 44 Ch. Div. 678, per Stirling, J., 687–8; Burgess, 3 D. M. & G. 896; Turton, 42 Ch. Div. 128). It is not easy to see why, if the respondents really desire to avoid all possible confusion with the complainers' goods, they should not be willing to use the other name. But they have declined to do so, and I think that ‘The Dunlop Motor Company, Limited,’ is a name to which the complainers are entitled to object.

For these reasons I shall grant interdict substantially in the terms craved in the prayer of the note, and find the complainers entitled to expenses.”

The respondents reclaimed, and argued—The respondents' business was different from the complainers, the former being a motor and motoring “accessories” and the latter a tyre business. It was true the complainers manufactured “accessories,” but the name of “Dunlop” had not become associated with these. The name used by the respondents was their own name and not some special trade name acquired by the complainers. Accordingly on both of these grounds it was well settled law that the complainers could only be successful in obtaining interdict if they proved, which they had failed to do, that the respondents' object in adopting the name they had adopted was to obtain a fraudulent advantage from the complainers' name by passing off goods manufactured by them as goods of the complainers— Burgess v. Burgess, 1853, 3 D. M. & G. 896; Eastman Photographic Materials Company, Limited, and Another v. John Griffiths Cycle Corporation, Limited, and Another, 1898, 15 R.P.C. 105; Eno v. Dunn, 1890, 15 A.0.252; Dunlop Pneumatic TyreCompany, Limited, v. Dunlop-Truffault Cycle and Tube Manufacturing Company, Limited, 1896, 12T.L.R. 434; Lucas, Limited, v. Fabry Automobile Company, Limited, 1906, 23 R.P.O. 33; Massam v. Thorley's Cattle Food Company, 14 Ch.Div. 748; Jamieson & Company v. Jamieson, 1898, 15R.P.O. 169, at 181; Cellular Clothing Company, Limited v. Maxton & Murray, April 27, 1899, 1 F. (H.L.) 29, 36 S. L.R. 605 (1899), A.C. 326.

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Further, in trade-name cases the onus of proving fraud lay upon the complainers, and this onus they had entirely failed to discharge. It was also noticeable that no evidence of any material importance had been adduced to prove that the public had been deceived, and the Court would not readily grant interdict ab ante

Argued for the complainers—Their business was not confined to tyres, but extended to all classes of cycling and motoring accessories, the very things which would be dealt in by the respondents. With regard to these accessories, the word “Dunlop” had already attained a special meaning, viz., manufactured by the complainers, and they had therefore already acquired an exclusive right in connection with such accessories to that name, extending not only to such accessories as they were already manufacturing, but to those of a similar class which they might in the future manufacture under the powers contained in their memorandum and articles of association. The only question accordingly was—Was it likely that the public would be deceived? — Brinsmead & Sons v. Brinsmead & Sons, 1896, 13 T.L.R. 3; Abel Morrall, Limited v. T. Hessin & Company, 1903, 20R.P.C. 429. It was unnecessary to prove that they actually had been deceived— Bayer v. Baird, July 12, 1898, 25 R. 1142, 35 S.L.R. 913; Eno, cit. sup.; Singer Manufacturing Company v. Kimball & Morton, January 14, 1873, 11 Macph. 267, 10 S.L.R. 173. It was not necessary to prove fraud— Singer Machine Manufacturing Company v. Wilson, 3 A.C.376; Cellular Clothing Company, Limited v. Maxton & Murray, cit. supra; but fraud was sufficiently proved by the fact that the respondents really had no business, and had only floated the company on the chance of selling it at a profit at some future period on the strength of its famous name. Interdict would be granted even against a person using his own name if the public would be deceived thereby— Valentine Meat Juice Company v. Valentine Extract Company, Limtted, and Others, 1900, 17 R.P.C. 673.