Kirstein Sons & Co. v. Cohen Bros.

Kirstein Sons & Co. v. Cohen Bros.

The terms 'shur-on' and 'sta‑zon' are corruptions of descriptive words and not purely inventive marks; descriptive corruptions cannot be exclusive trade‑marks, and 'sta‑zon' is neither visually nor phonetically similar to 'shur‑on' so its use did not constitute infringement or fraudulent passing off; therefore the...

Source-derived case information.

Citation
(1907) 39 SCR 286
Parties
Plaintiff/appellant: E. Kirstein Sons & Company; Defendant/respondent: The Cohen Brothers, Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
24 June 1907
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; judgment of the Court of Appeal for Ontario affirmed.
Legal Topics
Trade‑mark Infringement, Inventive Vs Descriptive Marks, Coined Words, Passing Off, Colourable Imitation, Descriptiveness
Source Language
english
Intellectual Property Trade‑mark Law Passing Off Trade‑mark Infringement Inventive Vs Descriptive Marks Coined Words Colourable Imitation Descriptiveness

Source-derived case record

Summary, issues, holding and outcome

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Parties

E. Kirstein Sons & Company

Plaintiff/appellant

The Cohen Brothers, Limited

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 the hyphenated coined words 'shur-on' and 'sta-zon' are capable of exclusive use as trade‑marks
  2. 2 Whether the defendants' use of 'sta-zon' infringed the plaintiffs' claimed trade‑mark 'shur-on'
  3. 3 Whether the defendants fraudulently counterfeited or passed off their goods as plaintiffs' goods

Ratio Decidendi

The terms 'shur-on' and 'sta‑zon' are corruptions of descriptive words and not purely inventive marks; descriptive corruptions cannot be exclusive trade‑marks, and 'sta‑zon' is neither visually nor phonetically similar to 'shur‑on' so its use did not constitute infringement or fraudulent passing off; therefore the appeal fails and the lower court judgment is affirmed.

Court Disposition

Appeal dismissed with costs; judgment of the Court of Appeal for Ontario affirmed.

Orders

  • Appeal dismissed with costs
  • Judgment of the Court of Appeal for Ontario affirmed