Partlo v. Todd

Partlo v. Todd

Registration did not give the plaintiff an exclusive right to the words 'Gold Leaf' because those words were in common descriptive use in the flour trade prior to registration; purely descriptive English words cannot be appropriated as proprietary trade marks by registration, and a defendant in an infringement...

Source-derived case information.

Citation
(1888) 17 SCR 196
Parties
Plaintiff/appellant: William Partlo; Defendant/respondent: Thomas Todd; Defendant/respondent: Martin N. Todd
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
14 June 1888
Procedural Posture
Trade Mark Infringement Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal dismissed with costs
Legal Topics
Registration, Infringement, Descriptive Marks, Rectification of Register, Exclusive Right of Use
Source Language
english
Intellectual Property Trade Mark Law Registration Infringement Descriptive Marks Rectification of Register Exclusive Right of Use

Source-derived case record

Summary, issues, holding and outcome

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Parties

William Partlo

Plaintiff/appellant

Thomas Todd

Defendant/respondent

Martin N. Todd

Defendant/respondent

Procedural Posture

Trade Mark Infringement Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether registration confers an absolute exclusive right when the mark was previously in common descriptive use
  2. 2 Whether purely descriptive words can be the subject of property as a trade mark
  3. 3 Whether a defendant in an infringement action may challenge the validity of a registered mark by showing prior common use

Ratio Decidendi

Registration did not give the plaintiff an exclusive right to the words 'Gold Leaf' because those words were in common descriptive use in the flour trade prior to registration; purely descriptive English words cannot be appropriated as proprietary trade marks by registration, and a defendant in an infringement action may rebut the registrant's prima facie title by showing prior public use rendering the registration invalid.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs