Ilfringements.—The registered proprietor of a trade-mark can bring an action against any person who infringes his rights. In such an action he can apply for the prevention of the infringement, and also proceed to recover damages. Only a proprietor who is registered can thus take legal proceed ings, unless his trade-mark was in use before the 13th August 1875, and registration has been refused him. The comptroller may, on request, and on payment of the prescribed fee, grant a certificate that such registra tion has been refused. A successful action for infringement may greatly diminish the chance of further infringement, for by section 46 of the Act, in any legal proceedings in which the validity of the registration of a registered trade-mark conies into question, and is decided in favour of the proprietor, the Court or a judge may certify the same, and if the Court or a judge so certifies, then in any subsequent like proceeding the proprietor, on obtaining a final order or judgment in his favour, shall have his full costs, charges, and expenses as between solicitor and client, unless the Court or judge trying the subsequent action certifies that he ought not to have the same.
Assignment and transmission.—A trade-mark, when registered, can be assigned and transmitted only in connection with the goodwill of the business concerned in the particular goods or classes of goods for which it has been registered. It is determinable with that goodwill. A series of trade-marks are assignable and transmissible only as a whole, but for all other purposes each of the trade-marks composing a series are deemed and treated as registered separately. See HARDWARE; MERCHANDISE MARKS.
TRADE a person makes an article not patented, and gives it a certain name by which the article comes to be known in the market, any one who can make the same kind of article can call it by the name by which it is known, if he can in fact do so without passing off his goods for those of the original maker—if he can make his goods in precisely the same manner as does the original maker. It is not sufficient for him to be able merely to make the same kind of article in a different manner. In the House of Lords appeal case of Birmingham Vinegar Brewery Co. v. Powell (respondent), the respondent had for many years made a sauce from a secret recipe, called by him and known very widely as " Yorkshire Relish." The appellants there upon made another sauce very closely resembling that made by the respondent, and placed on the market under the name of " Yorkshire Relish." Upon proceedings being taken against them by the respondent, the Court restrained the appellants from using the words "Yorkshire Relish" in connection with their sauce without clearly distinguishing it from the respondent's sauce. If, however, the appellants had discovered the respondent's secret, and had made their sauce therefrom then they would have been entitled to use the name " Yorkshire Relish."