Scottish Court of Session Decisions

This was an appeal from a decision in the Sheriff Court of Elginshire in a petition presented by Hector Charleson, hotel-keeper, Station Hotel, Forres, against James Campbell, hotel-keeper, Royal Station Hotel there. The petition inter alia set forth—“That in an advertisement in Bradshaw's Time Tables and Murray's Time Tables, published for the months of June, July, and August, the respondent has wrongfully and illegally used and appropriated the name or title of the petitioner's hotel by inserting the word ‘Station’ between the words ‘Royal’ and ‘Hotel,’ and thus naming his hotel as the ‘Royal Station Hotel.’ That the respondent's servants, when soliciting customers on the arrival of the trains at the railway platform, wrongfully, fraudulently

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and illegally call the said Royal Hotel the ‘Station Hotel’ and the ‘Royal Station Hotel,’ whereby parties intending to put up at the petitioner's hotel are misled. That the foresaid advertisement by the respondent, and misrepresentations by his servants, have injured the petitioner's business, and he has suffered and is still suffering loss thereby.” The prayer was for interdict against Campbell's using the title of ‘Station Hotel’ or ‘Royal Station Hotel.’

The Sheriff-Substitute ( Macleod Smith) dismissed the petition, and the facts of the case will be found in the following note to his interlocutor:—

“ Note.—A hotel, situated about 360 yards from the Highland Railway Station at Forres, was opened in or about the year 1864. The first name given to it was the ‘Union Hotel.’ A year or two afterwards this name was discontinued, and it then got as its name, or as one of its names, the name of the ‘Station Hotel.’ It seems also to have been known at the same time as ‘MacLennan's Railway Hotel,’ MacLennan being the name of the tenant at that time. At Whitsunday 1875 the occupancy of this hotel was acquired by Mr Charleson, the present tenant. Mr Charleson continues the name of the ‘Station Hotel’ as the name or one of the names of the hotel, and as tenant he claims the exclusive right to the use of the name ‘Station Hotel,’ as designating the hotel so occupied by him.

Charleson complains that Mr Campbell, the respondent, who is tenant of another hotel at Forres, has since the month of June last wrongfully appropriated the name of ‘Station Hotel’ to his own hotel, and that he has advertised and otherwise used that name to the advantage of his hotel and the prejudice of Charleson's hotel. He maintains that Campbell had no right to do this, and has presented the present petition to have him .interdicted from continuing to do so.

It appears that Campbell's hotel is in the immediate vicinity of the station, being only about 100 yards distant from the door of the passenger office. Campbell maintains that his hotel being so much nearer to the station than that of the petitioner, the term ‘Station Hotel’ applies more truly to his house, and that the prior use of the same term in regard to another house at a considerably greater distance does not prevent his adopting it also.

I think that the view contended for by the respondent must be sustained. In regard to fancy names, adopted merely for the sake of distinguishing one hotel from another, such as the Caledonian Hotel, the Black Bull Hotel, or the like, these names are held to belong to the first house that adopts them, and no other person in the same locality is allowed to appropriate them. The reasons are obvious. But the name ‘Station Hotel,’ which is here in dispute, is a descriptive name. It is generally understood to refer to the nearest railway station in the neighbourhood, and it is understood to hold out to the public, or to imply, directly or indirectly, a certain representation, in regard to the house for which it is assumed, as to its proximity and convenience, or as to its superior and distinctive proximity and convenience for persons frequenting such station. The name of ‘Station Hotel,’ when originally adopted for the house now occupied by the petitioner, was substantially correct in holding out this assertion to the public. It was then the nearest hotel to the railway station. But since the respondent's hotel was opened this is no longer correct in point of fact. What was formerly a true representation has now become a misrepresentation, and in so far as the name has any effect it is a misrepresentation opposed to the interest and convenience of the general community. The law cannot recognise any right of property in a misrepresentation having present and continuous misleading effects as regards the general public in a matter of daily application, and will not therefore protect or defend, by interdict or otherwise, any claim to such right.

If the petitioner's hotel was practically beside the railway station, or in immediate proximity to it—and if situated in that position, it had the prior use of the name ‘Station Hotel,’—he might or might not be entitled to prevent any new hotel or hotels, although perhaps a few feet or yards nearer to the station, from adopting the same name. The point is not certain, because it might be maintained that any number of such hotels might be sufficiently distinguished by being designated as A's Station Hotel, B's Station Hotel, and so on. But where, as in the present case, the respondent's hotel is practically at the station, and the petitioner's hotel is at a substantial and considerable distance from it, it seems to be clear that the petitioner can have no right to debar the respondent from the correct use of a descriptive name which is so much more applicable to the respondent's house than to his own.

The case of Wotherspoon v. Currie, 1872, English and Irish Appeals, Law Reports, vol. 5, p. 508, referred to by the petitioner, does not effect these views. In that case the name at issue, which was originally the name of a place in itself of no importance, was held to have been taken out of its ordinary meaning and to have acquired a secondary signification created by the appellants in connection with their manufacture, and in that secondary signification they were held to have an exclusive right to it. There is nothing of that nature in the present case.”

At advising—