No. 1.-Burgess v. Burgess, S De G. M. & G. 898–900.

John Burgess, the plaintiff's father, was the first inventor and maunfacturer of an essence or sauce called " Essence of Anchovies," which was manufactured and sold by him at No. 107, Strand, previously to the year 1800, and by the plaintiff and his father as such copartners as aforesaid subsequently to that year during the continuance of the copartnership, and had been since the death of the plaintiff's father, and still was manufactured and sold by the plaintiff in very large quantities. The name Essence of Anchovies" was first used and adopted by John Burgess the plaintiff's father, and was not used by any person before him. [* 899] Since the year 1800 there had always been and there still were labels or printed papers affixed to or pasted on or round the bottles in which the said essence of anchovies so manufactured and sold by the plaintiff's father, and by him and the plaintiff jointly, and by the plaintiff as aforesaid, had been and was sold.

*

The plaintiff had two sons, William Harding Burgess and John James Burgess, who had been for many years retained and employed by the plaintiff in his said trade or business as his assistants, receiving salaries; and the defendant William Harding Burgess was so retained and employed for a period of thirty years, or thereabouts, before and up to the month of May, 1851. He was permitted to reside on the trade premises, No. 107, Strand, and did so reside until February, 1847, and the plaintiff's other son also resided on the premises for many years.

Shortly before Midsummer, 1852, the plaintiff was informed that William Harding Burgess had taken a house, warehouse, and premises in King William Street, in the city of London, on a lease, or for a term to commence at or from Midsummer, 1852, and the plaintiff was afterwards informed that William Harding Burgess was fitting up the same premises for business.

About the 15th of August, 1852, the plaintiff was informed that William Harding Burgess had just opened business (as in fact he had) at or on the same premises in the trade of an Italian and fish sauce warehouseman, and was selling or offering for sale various sauces and other articles, such as were usually sold by Italian warehousemen.

The defendant had letters and figures over his shop-front [*900]* the words "W. H. Burgess, late of 107, Strand;" the words "W. H. Burgess," occupying the space over one

No. 1.-Burgess v. Burgess, 3 De G. M. & G. 900, 901.

window, and the figures and word " 107, Strand," occupying the space over the other window, and the words " late of" being in the intermediate space over the fan-light; and being, according to the statements in the bill and the affidavit, in much smaller letters, and in German text, so as not to attract the same notice.

The labels used by the plaintiff and defendant respectively, which were principally relied upon, were as follows:

"107 (royal arms), Strand, corner of the Savoy Steps. John Burgess & Son. Original and Superior Essence of Anchovies.

The excellence of their much esteemed essence of anchovies stands unrivalled as a fish sauce, viz., for salmon, turbot, soles, eels, cod, haddock, and in all stewed fish. N. B. Be careful that you are not imposed upon by being supplied with the counterfeit sort, as many persons are daily waiting upon country shopkeepers, offering them an extra large profit to vend it. Burgess's New Sauce is strongly recommended to those palates not partial to anchovy. The very flattering reception this new sauce has experienced induces the proprietors to offer it as one of general utility and convenience, being alike adapted for fish, game, meats, or poultry, all made dishes, steaks, meat pies, browning for gravies or soups, maintenon cutlets, &c."

"36 King William Street,

City, London.

*

(Royal arms.)
Burgess's

Essence of Anchovies.

Late of 107,

Strand.

"The excellence of the much esteemed essence of anchovies, stands unrivalled as a fish sauce, viz., for sal- [*901] mon, turbot, soles, eels, cod, and for all stewed fish. This

sauce is made with the same care which has rendered it preeminent, and is warranted to keep in extreme climates whether hot or cold. Burgess's Univeral Sauce is confidently recommended to those not partial to the essence of anchovies. The proprietor is induced to offer this sauce as one calculated for general utility and convenience, being applicable to all kinds of fish, game, made dishes, steaks, chops, meat pies, mutton cutlets, &c.

The VICE-CHANCELLOR granted an injunction, restraining the defendant from continuing the use of the words "late of 107, Strand," and from continuing on the sides of his shop door the

No. 1.-Burgess v. Burgess, 3 De G. M. & G. 901, 902.

plate with the words "Burgess's Fish Sauce Warehouse, late of 107, Strand," but refused the rest of the motion.

From this refusal the plaintiff now appealed.

Sir Frederick Thesiger, Mr. Campbell, and Mr. Regnier Moore, for the motion:

The words "Burgess's Essence of Anchovies" have never been used except to designate the article manufactured and sold by the plaintiff and his late father, or one of them, and would always be supposed to denote that the article to which they were affixed had been so manufactured and sold. The circumstance that another person has the same name does not entitle him to mislead the public by adopting the trade-mark in which the plaintiff has acquired a property. In Sykes v. Sykes, 3 B. & C. 541 (27 R. R. 420), the plaintiff made shot belts and powder flasks, which he

was accustomed to mark with the words " Sykes's Patent." [* 902] * The defendants in that case, one of whom was named Sykes, used a stamp with the words "Sykes's Patent," and it was contended that as one of the defendants was named Sykes, and the plaintiff had no more right to call his goods patent than the defendants, the proceeding was justifiable; but the Court of Queen's Bench held, that although the defendants did not themselves sell the articles as goods of the plaintiff's manufacture, the verdict for the plaintiff ought not to be disturbed. In Blofield v. Payne, 4 B. & Ad. 410 (38 R. R. 270), the plaintiff was the inventor of metallic hones which he was accustomed to wrap up in envelopes to distinguish them. The defendants made other hones and wrapped them up in similar envelopes, whereby the plaintiff alleged that he was prevented from disposing of a great number of his hones, and they were depreciated in value, and injured in reputation: it was held that the plaintiff was entitled to damages, although he did not prove that the defendants' hones were inferior, or that he had sustained any specific damage.

[The Lord Justice Knight BRUCE. The law on the subject is as old as Southern v. How, in Popham's Reports, 144.]

In Croft v. Day, 7 Beav. 84-88, Lord LANGDALE said, "No man has a right to sell his own goods as the goods of another. You may express the same principle in a different form, and say that no man has a right to dress himself in colours, or adopt and bear symbols, to which he has no peculiar or exclusive right, and

No. 1.-Burgess v. Burgess, 3 De G. M. & G. 902-904.

thereby personate another person, for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such other person, * while he is really selling his own. It is [*903] perfectly manifest that to do these things is to commit a fraud, and a very gross fraud. I stated upon a former occasion, that, in my opinion, the right which any person may have to the protection of this Court does not depend upon any exclusive right which he may be supposed to have to a particular name, or to a particular form of words. His right is to be protected against fraud, and fraud may be practised against him by means of a name, though the person practising it may have a perfect right to use that name, provided he does not accompany the use of it with such other circumstances as to effect a fraud upon others."

Perry v. Truefitt, 6 Beav. 66, is to the same effect. In Millington v. Fox, 3 Myl. & Cr. 338 (45 R. R. 271), the Court held that there is a title to trade-marks independently of fraud. Lord COTTENHAM, in giving judgment in that case, said, "It does not appear to me that there was any fraudulent intention in the use of the marks. That circumstance, however, does not deprive the plaintiffs of their right to the exclusive use of those names; and his Lordship decreed a perpetual injunction.

They also referred to Lewis v. Langdon, 7 Sim. 421 (40 R. R. 166), and Knott v. Morgan, 2 Keen, 213.

Mr. Bacon and Mr. May, for the defendant, were not called upon.

The Lord Justice Knight BRUCE:—

All the Queen's subjects have a right, if they will, to manufacture and sell pickles and sauces, and not the less that their fathers have done so before them. All the Queen's [* 904] subjects have a right to sell these articles in their own names, and not the less so that they bear the same name as their fathers; nor is there anything else that this defendant has done in question before us. He follows the same trade as that his father follows and has long followed, namely, that of a manufacturer and seller of pickles, preserves, and sauces; among them, one called essence of anchovies. He carries on business under his own name, and sells his essence of anchovies as Burgess's Essence of Anchovies," which in truth it is. If any circumstance

No. 1.-Burgess v. Burgess, 3 De G. M. & G. 904, 905.

of fraud, now material, had accompanied, and were continuing to accompany, the case, it would stand very differently; but the whole case lies in what I have stated. The whole ground of complaint is the great celebrity which, during many years, has been possessed by the elder Mr. Burgess's essence of anchovies. That does not give him such exclusive right, such a monopoly, such a privilege, as to prevent any man from making essence of anchovies, and selling it under his own name. Without therefore questioning any one of the authorities cited, all of which I assume to have been correctly decided, I think that there is here no case for an injunction.

But if I had any doubt upon the matter, it would be impossible, I think, to accede to the present motion, a mere interlocutory application by way of appeal, notice of which is not given till March, to vary an order pronounced in the preceding October. am of opinion that this motion must be refused with costs, with liberty to the plaintiff to take such proceedings at law as he may be advised.

The Lord Justice TURNER:

I

I concur in the opinion that this motion should be refused with costs. No man can have any right to represent [* 905] * his goods as the goods of another person, but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. Where person is selling goods under a particular name, and another person, not having that name, is using it, it may be presumed that he so uses it to represent the goods sold by himself as the goods of the person whose name he uses; but where the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there is false representation or not. Looking at the labels before us, I think it is clear that, since the order made by the VICE-CHANCELLOR, there has been no representation made on the part of the defendant that the goods which he is selling are the goods manufactured by the plaintiff. This motion, therefore, must be refused with costs, the plaintiff having liberty to proceed at law as he may be advised.