Charles P. Kinnell & Co., Ltd v. A. Ballantine & Sons and Others [1909] ScotLR 227 (14 December 1909)

Charles P. Kinnell & Co., Ltd v. A. Ballantine & Sons and Others [1909] ScotLR 227 (14 December 1909)

The term 'Horse Shoe' as applied to boilers has acquired a secondary meaning in the trade, identifying the pursuers' goods; defenders' use of the term without clear distinction is likely to deceive purchasers; pursuers are entitled to a qualified interdict but not to declarator of exclusive right or damages, as no actual deception was proved.

Citation
[1909] ScotLR 227
Parties
Pursuer: Charles P. Kinnell & Company, Limited; Defender: A. Ballantine & Sons; Defender: David Ballantine; Defender: Archibald Ballantine
Jurisdiction
Scotland
Judgment Date
14 December 1909
Procedural Posture
Commercial Intellectual Property / Appeal (reclaiming Motion)
Outcome
Interlocutor recalled; qualified interdict granted; damages award recalled; expenses awarded in Outer House (modified to two-thirds); no further expenses due.
Legal Topics
Passing Off, Trade Name, Secondary Meaning, Interdict, Damages
Intellectual Property Commercial Law Passing Off Trade Name Secondary Meaning Interdict Damages

Case Brief

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Parties

Charles P. Kinnell & Company, Limited

Pursuer

A. Ballantine & Sons

Defender

David Ballantine

Defender

Archibald Ballantine

Defender

Procedural Posture

Commercial Intellectual Property / Appeal (reclaiming Motion)

Legal Issues

  1. 1 Whether the term 'Horse Shoe' as applied to boilers has acquired a secondary meaning identifying only the pursuers' goods
  2. 2 Whether defenders' use of 'Horse Shoe' is likely to deceive purchasers into believing their goods are those of the pursuers
  3. 3 Whether pursuers are entitled to exclusive use of the name and/or damages

Ratio Decidendi

The term 'Horse Shoe' as applied to boilers has acquired a secondary meaning in the trade, identifying the pursuers' goods; defenders' use of the term without clear distinction is likely to deceive purchasers; pursuers are entitled to a qualified interdict but not to declarator of exclusive right or damages, as no actual deception was proved.

Court Disposition

Interlocutor recalled; qualified interdict granted; damages award recalled; expenses awarded in Outer House (modified to two-thirds); no further expenses due.

Orders

  • Defenders interdicted from using 'Horse Shoe' as descriptive of or in connection with boilers not of pursuers' manufacture sold or offered for sale without clearly distinguishing such boilers from pursuers' boilers.
  • Quoad ultra assoilzied defenders from conclusions of the summons.