Dickson & Sons v Dickson & Sons

• Jurisdiction: Ireland
• Judgment Date: 24 February 1909
• Date: 24 February 1909
• Docket Number: (1907. No. 497.)
• Court: High Court

Alex. Dickson & Sons, Limited, V. Alexander Dickson & Sons, Alexander Dickson, Joseph Dickson, and Alexander Dickson, Junior (1).

Appeal.

(1907. No. 497.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1909.

Trade name — Untrue description — Trader's own name with misleading addition — Injunction — Costs — Unnecessary witnesses subpoenaed but not examined.

The plaintiffs, a firm of horticulturists, had traded for over fifty years under the name of Alexander D. & Sons in the North of Ireland. In 1900 they were incorporated as a joint stock company, as Alex. D. & Sons, Limited, and in the following year opened a shop in Dublin. They acquired a considerable reputation as growers and propagators of roses, and garden seeds, thereby rendering (as was admitted) their trade name of high commercial value. The defendant, whose name was Alexander D., was established in Dublin from 1875 as a trader in the heavy seed (non-horticultural) business, and, about 1897, opened a shop in Capel Street as “The Ashbourne agricultural company.” Two years later he put the name “Alexander D., proprietor,” on the sign-board. He subsequently moved the business to a house in Parliament street, where it was carried on as the “Ashbourne Agricultural Company,” without any addition of the proprietor's name. This continued until February, 1907. In 1905 the defendant purchased ground near Dublin, which he turned into a nursery for roses and other plants, advertising it as “The Home of the Rose.” He had two sons, one employed as an assistant at the house in Parliament Street, the second at the nursery—neither being in partnership with him. The plaintiffs having gone into the agricultural seed business, and obtaining a Government contract for it when the defendant made an unsuccessful tender, he, admittedly by way of reprisal, advertised as a rose-grower and horticulturist at the nursery address as “Alexander D. & Sons,” as well as for potatoes and heavy seed business, under that title and at that address, while he continued in the same papers advertisements as the “Ashbourne Agricultural Company” at parliament street. He also answered a “trap” letter ordering roses of other growers’ introduction, by offering to comply with the order at a subsequent date; and, as the result of a large body of evidence, oral and documentary, the court being of opinion that the defendant had designedly attempted, by the addition of the words “& Sons,” to use a trade designation untrue in fact, as the sons were not partners, to lead

the public to believe that his business, and the roses and other plants sold by him, were those of the plaintiff Company, affirmed the judgment of the Master of the Rolls, granting an injunction restraining the defendant from carrying on business as Alexander D. & Sons; but varying the order of the Master of the Rolls appealed from, so as to permit the defendant to carry on business under his own name as Alexander D.

Turton v. Turton (42 Ch. D. 128) distinguished.

The Court being of opinion that, notwithstanding the pleadings, the extensive and valuable trade reputation which the plaintiff Company enjoyed was not really in controversy; and, having regard to its admission by defendants’ counsel at the opening of the trial, dismissed a cross-appeal by the plaintiff Company from portion of the judgment of the Master of the Rolls disallowing the costs of witnesses on this question who were subpoenaed but not examined.

Appeal by the defendant Alexander Dickson, from the judgment of the Master of the Rolls, dated the 9th May, 1908, the curial part of which was as follows:—

“This Court doth order that the defendant Alexander Dickson be, and he is hereby, restrained from carrying on the business of nurseryman, either in the name of ‘Alexander Dickson & Sons,’ or ‘Alex. Dickson & Sons,’ [or under any style in which the name of ‘Dickson’ appears without taking reasonable precautions clearly to distinguish the business carried on by the defendant, Alexander Dickson, from the business carried on by the plaintiffs] (1), and from carrying on any such business under any name or in any manner so as to mislead or deceive the public into the belief that the business of the defendant Alexander Dickson is the business of the plaintiffs, or that the goods sold by the defendant Alexander Dickson are the goods of the plaintiffs; and this Court doth order that the said defendant do pay to the said plaintiffs their costs of this action when taxed and ascertained, save so much thereof as has been occasioned by the plaintiffs seeking to have the defendant restrained from selling any roses or seeds not grown or propagated by the plaintiffs as ‘Dickson's roses,’ or ‘Dickson's seeds,’ or as ‘Dickson's Irish roses,’ or ‘Dickson's Irish seeds’; and in the taxation of the said costs, it is ordered that the costs and expenses of the witness Alexander B. Scott, and of all

witnesses subpoenaed by the plaintiffs to prove their reputation but not examined, be disallowed against the said defendant.”

The action was brought by the plaintiffs, a Company incorporated under the name Alex. Dickson & Sons, Limited, against Alexander Dickson & Sons, Alexander Dickson, Joseph Dickson, and Alexander Dickson, junior, as defendants, seeking for an injunction to restrain the defendants from trading in such a way as to lead the public to believe that their business, or the roses and seeds sold by them, was the business of, or were roses or seeds grown or propagated by, the plaintiffs; and from referring by advertisement, or otherwise, to a nursery called Woodlawn at Dundrum, county Dublin, the property of the defendant, Alexander Dickson, as “The Home of the Rose.” It having been admitted in answer to notice that there was no partnership in the firm of Alexander Dickson & Sons, the action was discontinued against Joseph Dickson and Alexander Dickson, junior.

The business of the plaintiff Company was founded in 1836, by a nurseryman and seedsman named Alexander Dickson (now deceased). It was first established at Newtownards, and was subsequently extended to Belfast, Dublin, and Blackrock, county Dublin, and Ledbury, Herefordshire.

This business was carried on continuously under the title of Alexander Dickson & Sons, from 1836 to 1900, when it was formed into a limited liability Company, registered as Alex. Dickson & Sons, Limited. It may be taken as admitted, although formally traversed in the statement of defence, that during these years the plaintiff Company and their predecessors had acquired a wide reputation in the home, colonial, and foreign markets as growers and propagators of roses, and their roses and seeds, known as “Dickson's roses,” and “Dickson's seeds,” and “Dickson's Irish roses,” and “Dickson's Irish seeds,” had been largely advertised under these names, had very large sales, and enjoyed an extensive reputation for excellence. The Dublin business of the plaintiff Company was opened in Dawson Street, in 1901; and in 1906 they acquired a nursery at Blackrock. Down to 1907, the principal, if not the exclusive, business of the plaintiff Company was as florists, and especially as rose-growers; but in the year 1907 they entered into the heavy seed business, such as the sale of seed potatoes, and so advertised; and in the spring of that year, they obtained contracts from the Department of Agriculture, for which the defendant Alexander Dickson had unsuccessfully tendered.

The defendant, Alexander Dickson, whose full baptismal name was Alexander Buchanan Gordon Dickson, but who never used any name but Alexander Dickson, had been in business for forty years. He came to Dublin in 1875. He bought a shop in Capel Street, about twelve years prior to the action, where he carried on business as a grain and seed merchant, under the name of the “Ashbourne Agricultural Company,” with the words, “Alexander Dickson, Proprietor,” on the signboard. He moved to Parliament Street, still trading as the “Ashbourne Agricultural Company.” There was no signboard with the proprietor's name at the Parliament Street premises. His sons, Joseph, over 26 years of age, and Alexander junior, about 19, assisted him in the business, but were not partners. Joseph had been assisting in Parliament Street for eleven years. He had asked to be made a partner, but his claim to be admitted to partnership was refused for the present. On the 20th September, 1905, the defendant acquired premises at Woodlawn, Dundrum, county Dublin, which he converted into a nursery. Alexander Dickson, junior, was employed there. The defendant then went into the horticultural business, and advertised plants in the Irish Times, as Alexander Dickson & Sons, Woodlawn Nurseries, also advertised in Garden Life, “Irish Roses” under the same title, and “Irish Seed Potatoes” as “Alexander Dickson & Sons, Woodlawn Nurseries, Dundrum,” and in the same issue “Irish Seed Potatoes,” as “Ashbourne Agricultural Company, Parliament Street, Dublin,” as stated in the judgment of the Lord Chancellor, infra, p. 19 7.

The substance and effect of the very voluminous evidence given at the trial are also fully stated in the judgments of the Lord Chancellor and Holmes, L.J.

Soon after the defendant had assumed the trade name of Alexander Dickson & Sons some inconvenience was experienced in the misdelivery of letters. On the 25th February, 1907, one of the directors of the plaintiff Company wrote to the defendant (addressing him as Messrs. Alexander Dickson & Sons, Woodlawn Nurseries, Dundrum, county Dublin), referring to advertisements in the Irish Times— pointing out “in a friendly spirit” how the use of this new title was “likely to lead to much confusion and annoyance to our respective firms.” The letter suggested “The Ashbourne Seed and Nursery Co.” as a suitable trade name.

The defendant replied by letter, dated 26th February: “The...