Montgomerie & Co. v. Young Brothers [1904] ScotLR 41_241 (21 January 1904)

Montgomerie & Co. v. Young Brothers [1904] ScotLR 41_241 (21 January 1904)

The pursuers failed to prove that the defenders, after ceasing to be authorised agents, sold bread as Bermaline bread in infringement of the trade mark, or that any such sales were other than inadvertent acts by servants contrary to explicit instructions. There was no reasonable apprehension of repetition, and interdict against the defenders was not appropriate. The reclaiming-note was competent as no amendment existed on record at the relevant time.

Citation
[1904] ScotLR 41_241
Parties
Pursuer/respondent: Montgomerie & Company, Limited; Defender/reclaimer: Young Brothers
Jurisdiction
Scotland
Judgment Date
21 January 1904
Procedural Posture
Civil / Reclaiming Note (appeal) From Interlocutor of Lord Ordinary
Outcome
interlocutor recalled; defenders assoilzied (absolved)
Legal Topics
Trade Mark Infringement, Interdict (injunction), Master and Servant Liability, Amendment of Record, Competency of Reclaiming Note
Intellectual Property Civil Procedure Commercial Law Trade Mark Infringement Interdict (injunction) Master and Servant Liability Amendment of Record Competency of Reclaiming Note

Case Brief

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Parties

Montgomerie & Company, Limited

Pursuer/respondent

Young Brothers

Defender/reclaimer

Procedural Posture

Civil / Reclaiming Note (appeal) From Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether interdict is appropriate against a master for acts of servants in disobedience to instructions infringing trade mark rights
  2. 2 Whether the reclaiming-note was incompetent due to failure to print and box an amendment to the record

Ratio Decidendi

The pursuers failed to prove that the defenders, after ceasing to be authorised agents, sold bread as Bermaline bread in infringement of the trade mark, or that any such sales were other than inadvertent acts by servants contrary to explicit instructions. There was no reasonable apprehension of repetition, and interdict against the defenders was not appropriate. The reclaiming-note was competent as no amendment existed on record at the relevant time.

Court Disposition

interlocutor recalled; defenders assoilzied (absolved)

Orders

  • Objection to competency of reclaiming-note repelled
  • Interlocutor of Lord Ordinary recalled