Valentine v Valentine

• Jurisdiction: Ireland
• Judgment Date: 19 November 1892
• Date: 19 November 1892
• Court: Chancery Division (Ireland)

M. R.

VALENTINE

and

VALENTINE.

Burgess v. BurgessENR 3 De G. M. & G. 896.

Croft v. DayENR 7 Beav. 84.

Holloway v. HollowayENR 13 Beav. 209.

Fullwood v. Fullwood W. N., 1873, p. 185.

Lee v. HaleyELR L. R. 5 Ch. App. 155.

Warner v. Warner 5 Times' Law Reports, 327.

Tussaud v. Tussaud 38 W. R. 503.

Turton v. Turton 42 Ch. Div. 128.

Hendriks v. Montagu 17 Ch. Div. 638.

Churton v. DouglasENR Johns. 174.

Bulnois v. Peake 13 Ch. Div. 513, note.

Wotherspoon v. CurrieELR L. R. 5 H. L. 508.

Turton v. Turton 42 Ch. Div. 128.

Burgess v. BurgessENR 3 De G. M. & G. 896.

Croft v. DayENR 7 Beav. 84.

Fullwood v. Fullwood W. N., 1873, p. 185.

Tussaud v. Tussaud 38 W. R. 503.

Wolmershausen v. Wolmershausen W. N., 1892, p. 87.

Williams v. OsborneUNK 13 L. T. (N. S.) 498.

Lee v. HaleyELR L. R. 5 Ch. App. 155.

Guinea Coal Case, Wotherspoon v. CurrieELR L. R. 5 H. L. 308.

Hendriks v. Montagu 17 Ch. Div. 638.

Bulnois v. Peake 13 Ch. Div. 513.

Montgomery v. ThompsonELR [1891] A. C. 217.

Burgess v. BurgessENR 3 De G. M. & G. 896.

Croft v. DayENR 7 Beav. 84.

Holloway v. HollowayENR 13 Beav. 209.

Warner v. Warner 5 Times Law Reports, 327.

Tussaud v. Tussaud 44 Ch. Div. 678.

Womershausen v. Wolmershausen W. N., 1892, p. 87.

Turton v. Turton 42 Ch. Div. 128.

Burgess v. BurgessENR 3 De G. M. & G. 896.

Williams v. OsborneUNK 13 L. T. (N. S.) 498.

Trade name — Defendant carrying on business in his own name in plaintiff's former premises — Intention to deceive — Refusal of party secking injunction to state grounds of complaint to defendant.

M. R. VALENTINE v. VALENTINE. 1892. Nov. 12, 16, (1892. No. 711.) 17, 18, 19. Trade name-Defendant carrying on business in his own name in plaintiff's former premises-Intention to deceive-Refusal of party seeking injune-• tion to state grounds of complaint to defendant. T. H. V. carried on the business of a tea merchant at 23, Corn Market, and afterwards at Castle-place, Belfast, under the name of " V. & Co." J. V., W. V., and A. C. V. took the premises 23, Corn Market after they had been given up by T. H. V., and set up business there as tea merchants, under the name of "J. V. & Co." T. H. V. issued a writ against J. V., W. V., and A. C. V., seeking an injunction to restrain the defendants from carrying on business in such a way as to deceive the public into the belief that the business carried on by the defendants was the same business as the plaintiff's. The defendants' solicitor asked the plaintiff's solicitor what were the specific acts of the defendants of which the plaintiff complained, and offered to insert an advertisement in the newspapers to show that there was no connexion between the plaintiff's business and the defendants'. The plaintiff's solicitor refused to comply with this request, but instituted a motion for an injunction. The Master of the Rolls came to the conclusion on the evidence that the defendants used the name of " V. & Co.," at 23, Corn Market, with the object of seeking to secure to themselves a portion of the plaintiff's custom, by suggesting to the public that their business was the•plaintiff's, and was of opinion that the plaintiff would have been entitled to an injunction, but having regard to the refusal of the plaintiff to state what were the specific acts complained of, he refused the motion for an injunction, without costs. Turton v. Turton (42 Ch. Div. 128) and Williams v. Osborne (13 L. T., N. S., 498) considered. INJUNCTION MOTION. This was a motion for an injunction to restrain the defendants from carrying on the business of tea merchants at 23, Corn Market, Belfast, the former place of business of the plaintiff, under the name of "J. Valentine & Co.," or under any other name closely resembling the plaintiff's name, " Valentine & Co." The application was treated as the hearing of the action. The facts of the case are sufficiently stated in the head-note, and in VoL. XXXI.] CHANCERY DIVISION. 489 the judgment of the Master of the Rolls. In addition to the M. R. affidavits filed, evidence was taken viva voce, which will be found 1892. VALENTINE summarized in the judgment. v. VALENTINE. Piers F. White, Q.C., Walker Craig, Q.C., and W. H. Brown, for the plaintiff : The plaintiff is entitled to an injunction. The peculiarity of the present case is that not only have the defendants set up a, rival business to the plaintiff's, and under the same name, but they have taken the plaintiff's former premises for that purpose. The plaintiff could not complain if the defendants merely set up a rival business under the name of " Valentine & Co.," in a different street, but the defendants have taken the plaintiff's old premises, and carried on business there under that name, in such a way as to make persons believe that the business carried on there was the plaintiff's. The evidence shows that there was an intention to deceive, that persons were deceived, and that the plaintiff's business suffered in consequence, and would have suffered more but for the steps that he took to make known that his business and the defendants' were different. [They cited the following authorities : Burgess v. Burgess (1) ; Croft v. Day (2) ; Holloway v. Holloway (3) ; Fanwood v. Full-wood (4) ; Lee v. Haley (5) ; Warner v. Warner (6) ; Tussaud v. Tussaud (7) ; Turton v. Turton (8) ; Hendriks v. Montagu (9) ; Churton v. Douglas (10) ; Bulnois v. Peake (11) ; Wotherspoon v. Currie (12) ; Sebastian on Trade Marks, p. 271; Seton on Decrees, p. 542.] The Attorney-General (The Mac Dermot), John Stanley, Q.C., and J. M. Day, for the defendants : There were no associations connected with the premises in Corn Market with the name of " Henry Valentine & Co." The (1) 3 De G. M. & G. 896. (2) 7 Beay. 84. (3) 13 Beay. 209. (4) W. N., 1873, p. 185. (5) L. R. 5 Ch. App. 155. (6) 5 Times' Law Reports, 327. • (7) 38 W. R. 503. (8) 42 Ch. Div. 128. (9) 17 Ch. Div. 638. (10) Johns. 174. (11) 13 Ch. Div. 513, note. (12) L. IL 5 H. L. 508. 490 LAW REPORTS (IRELAND). [L. R. I. /IL B. premises were taken by the plaintiff in 1891 on a quarterly 1892. letting, and the plaintiff did. not intend to keep these premises. VALENTINE He only took the name of "Valentine & Co." in 1892. The v. VALENTINE. defendants did no acts to deceive the public. They took the premises under a written agreement, in which the landlord stipulated that the premises were to be used for the tea business only. The defendants are entitled to use their own name, and call themselves " J. Valentine & Co." There was no intention to deceive, and the plaintiff has not sustained any real loss or injury. Turton v. Turton (1) and Burgess v. Burgess (2) are in favour of the defendants' contention. In the latter case Kindersley, V.-C., restrained the use of the words " late of 109, Strand," and refused the rest of the motion. See judgment of Knight-Bruce, L. J., at p. 904. Croft v. Day (3) is not against the defendants. Fullwood v. Fullwood (4) was a question of similarity of bottles and labels. Tussaud v. Tussaud (5) is in favour of the defendants. There it was admitted that Louis Tussaud might have taken partners into his business, and carried it on under the name of " Louis Tussaud & Co." May not the defendants use their own name, and carry on business as " J Valentine & Co." ? [THE MASTER OF THE ROLLS : That was not really contested.] It was made part of the plaintiff's case. If the plaintiff is entitled to an injunction at all, it is only to an order like that in Wolmershausen v. Wolmershausen (6), to restrain the defendants from carrying on their business of " Valentine & Co.," without clearly distinguishing such business from the business of the plaintiff. But no injunction ought to be granted, as the plaintiff's solicitor declined to comply with the request contained in the letters of the defendants' solicitor of October 11th and 17th, to state what were the specific acts of which the plaintiff complained, and insisted on bringing the case into Court, notwithstanding the offer contained in these letters. Under somewhat similar circumstances Wood, V.-C., refused (1) 42 Ch. Div. 128. (4) W. N., 1873, p. 185. (2) 3 be G. M. & G. 896. (5) 38 W. It. 503. (3) 7 Beay. 84. (6) W. N., 1892, p. 87. Pot. XXXI.] CHANCERY DIVISION. 491 an injunction with costs, being of opinion that the Court should M. R. not interfere by injunction, unless it was satisfied not only that 1892. the course which had been taken by the defendant had been VAL EENTIN calculated to deceive the public ; but that it had been represented VALENTINE. to them by the plaintiffs as having that effect : Williams v. Osborne (1). THE MASTER OF THE ROLLS : This action was commenced on the 30th of September, 1892, Nov. 19. by a writ in which Thomas Henry Valentine, trading as Valentine & Co., is plaintiff and James Valentine, William Valentine, and Alexander C. Valentine, trading as J. Valentine & Co., are defenÂdants, and which claims an injunction to restrain the defendants from carrying on business in such a manner as to deceive or mislead the public into the belief that the business carried on by the defendants is the same business as the business carried on by the plaintiff, and to restrain the defendants from carrying on in plainÂtiff's former premises 23, Corn Market, Belfast, the tea trade under the style of " Valentine & Co., " or under any other style or firm so closely resembling the plaintiff's name " Valentine & Co.," as to be calculated to deceive the public and injure the plaintiff's trade, and to restrain them from publishing the trade name "J. Valentine & Co., " by means of sign-boards, placards, business cards, or other advertisements of such a kind as are likely to mislead or deceive the public into the belief that the defendants' business is the same as that of the plaintiff, and other relief. The case is one in which the real names of the parties on both sides have been used. The plaintiff's real...