Scottish Court of Session Decisions

The complainers in this action, the Lochgelly Coal and Iron Company (Limited), carried on business as coal and iron masters at the works of Lochgelly, in Fife. They had acquired in 1872 a lease of the minerals in the estate of Lochgelly, which did not expire till 1903. They stated on record that the Lochgelly collieries had been established at great cost, and had been in operation for upwards of a century; that the coal derived from them had acquired a wide reputation, and was known both in this country and on the Continent under the name of “Lochgelly coal,” and was the only coal so known in the market; that it was known by various distinguishing names, e.g., “Lochgelly steam coal,” Lochgelly splint coal,” according to its kind and quality, but that they were alone entitled to describe coal by the name of Lochgelly, which the public understood as denominating exclusively coal produced at their collieries. They further averred that for many years they and their predecessors had selected and prepared coal for shipment abroad, and that this coal was favourably known by the name of “Lochgelly coal.”

They had recently discovered that the respondents, the Lumphinnans Iron Company—who were lessees of the coals and other minerals in the lands of Lumphinnans adjoining Lochgelly—had begun to sell at home and to ship to the north of Europe and elsewhere coal from their colliery as “Lochgelly coal,” and had also issued circulars offering for sale coal procured from their collieries under the name of “Lochgelly coal.” This was stated to be an infringement of the complainers' rights, and it was said that the name had been adopted for the purpose of misleading the public.

This note of suspension and interdict was therefore presented, in which the Court were asked “to interdict, prohibit, and discharge the said respondents from designating, advertising, selling, shipping, or exporting, and from causing to be designated, advertised, sold, shipped, or exported as ‘Lochgelly coal’ any coal worked or raised by the respondents from their works at Lumphinnans or elsewhere, or any coal other than that worked and sold by the complainers at their Lochgelly collieries, and from using the name of ‘Lochgelly’ either by itself or in combination with other words to designate any coal sold, shipped, or exported by them other than coal worked and sold by the complainers as aforesaid, and from in any manner of way infringing the sole and exclusive right of the complainers to use the name of ‘Lochgelly coal’ for the purpose of designating the coal wrought by them as afore said,

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or to do otherwise in the premises as to your Lordships shall seem proper.”

The respondents stated inter alia—“The names of the coals specified in the circular complained of have no reference to those supplied by the Lochgelly Iron Company, but merely indicate the names of the various coals by the names of the respective seams from which they are produced. There is a seam of coal in the district known by the name of ‘Lochgelly’ seam, sometimes called ‘Lochgelly splint,’ and sometimes ‘Lochgelly splint and parrot.’ The ‘Lochgelly seam’ of coal is not confined to the pit of the Lochgelly Iron and Coal Company, but is worked under that name at various other collieries as well as by the respondents. In particular, it is worked and known as the Lochgelly seam or the Lochgelly splint coal at Cardenden, Denend, Dundonald, Foulford, Cowdenbeath, Little Raith, Donibristle, and Hill of Beath collieries.”

They also averred that they had worked the Lochgelly seams, and described them as such for twenty years, and that it was in accordance with the usage of trade that the name of a seam or of the coal raised from it should not be confined to the particular place or district from which the name might originally have been derived.

The circular complained of was headed “Lumphinnans Coal and Iron Works, by Lochgelly, Fife,” and included among other kinds of coal “Lochgelly splint coal” and “Lochgelly steam coal.”

A proof was allowed to the parties, from which, inter alia, it appeared that “Lochgelly coals” had acquired a considerable reputation both at home and abroad; that if coals were so quoted in the market the interpretation put upon it would be that they were coals from the complainers' collieries; that in point of fact the public had been misled to some extent by the respondents' circular. That the complainers had several collieries bearing different names, but all their produce was sold as “Lochgelly coals” with the distinctive name of the colliery or of the kind of coal attached. That the seam called “Lochgelly splint” extended for a considerable distance and under a great many estates. That the complainers in exporting sent away no “Lochgelly splint” pure and simple; that what they mainly exported, and what was known as “Lochgelly coal,” was steam coal, which was a manufactured, or rather a selected and mixed article, and which was called “Lochgelly steam coal,” no matter what colliery it was derived from.

It was stated by Mr Spowart, chairman of the Fife Coalmasters Association, that what he would understand by the term “Lochgelly coal” was coal worked on the Lochgelly estate, and that alone; and that coalowners in Fife designated coals by the name of the colliery or firm which put out the coal. This was corroborated by several witnesses.

The further import of the proof sufficiently appears from the Lord Ordinary's note.

The Lord Ordinary ( Rutherfurd Clark) pronounced the following interlocutor:—

“ Edinburgh, 16 h July 1878.—The Lord Ordinary having considered the cause, interdicts, prohibits, and discharges the respondents from designating, advertising, selling, shipping, or exporting, and from causing to be designated, advertised, sold, shipped, or exported as Lochgelly steam coal any coal raised by them at their works at Lumphinnans, or any coal other than steam coal sold by or obtained from the complainers: Quoad ultra repels the reasons of suspension, and refuses the interdict, and decerns,” &c.

He added this note:—

“ Note.—The purpose of this application is to restrain the respondents from using the word ‘Lochgelly’ on the sale and advertisement of their coals. The complainers allege that that word has been appropriated by them to denote the coals which are sold by them at their works at Lochgelly.

The complainers are the tenants of the minerals in the lands of Lochgelly and in the adjoining lands of Raith. The respondents, again, are the tenants of the minerals in the lands of Lumphinnans, which march with Lochgelly.

The seams of coal in all these lands are the same. Indeed the same coal measures in that locality extend over a considerable area. There is one seam which is called the Lochgelly splint coal. This seam is known by that name not only in so far as it is in the lands of Lochgelly, but in a variety of other lands, including the lands of Lumphinnans.

The complainers have both a home and foreign trade. The latter consists mainly, if not exclusively, in the export of steam coal. This coal is not the product of any one seam, but is a mixed coal.

Before this process was fixed the respondents were in use to export coal under the name of ‘Lochgelly steam coal.’ It is true that it was described as the Lumphinnans Iron Company's Lochgelly coal. But in the opinion of the Lord Ordinary this was a plain invasion of the rights of the complainers, and it is not now justified by the respondents. They were using a name which denoted a mixture or manufacture of the complainers. So far the Lord Ordinary is of opinion that the complainers are entitled to interdict.

But the respondents maintain that they are entitled to sell the coal raised from the seam known as Lochgelly splint coal under that name. They contend that they may lawfully use that name to distinguish it as the produce of a particular seam, as well as to distinguish it from other splint coals raised in their mineral fields, as, for instance, the Dunfermline splint coal.

The complainers contend that they have appropriated the name ‘Lochgelly,’ or at least that they have appropriated it for the purposes of their foreign trade.

It does not very clearly appear from the proof when the Lochgelly splint was first given to the seam now known by that name. But it is older than the complainers' company; and within the district in which the complainers' and respondents' coal-fields are situate it is the only known name for that seam. The complainers do not suggest how orders could be given for this particular coal under any other name than the Lochgelly splint, but they go the length of contending that if the respondents received such an order they could not invoice the coals under the name of the seam. This contention seems to the Lord Ordinary to be without foundation.

The case of the complainers is that they have

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used the name ‘Lochgelly’ to denote a coal sold from their works in whatever fields it has been raised, and that in consequence Lochgelly coal is only known in the market as the produce of their collieries. So far as the home ‘trade goes the evidence on this point is very slender. It consists chiefly in the statement of coalmasters and others to the effect that it is the custom in Fife to sell coals under the name of the colliery. But it is very general, and does not exclude the custom of selling coal which has a known name under that name. It is true that the complainers maintain that the name ‘Lochgelly splint coal’ is not a commercial name, but rather a geological term. But it is certainly a name in common use amongst coalmasters and miners.

The most reliable evidence is, however, to be found in the circulars issued by the complainers to their customers. In these they do not use the word Lochgelly as distinctive of the coal in which they deal. On the contrary, they profess to sell Lochgelly, Foulford, and Raith coals. It is only in a circular issued after this process was raised that they described all their coal as Lochgelly coal.

A number of witnesses have been examined, chiefly, if not exclusively, engaged in the foreign trade, who say that Lochgelly coal is only known in the market as the coal raised by the complainers. It is remarkable that the right of the complainers is made to depend rather on the name which others have given to that coal than on the name which they themselves have used. But it seems to the Lord Ordinary that these witnesses are all speaking of steam coal, which is the only coal that is exported. Their evidence therefore does not seem to be material in the question whether the respondents are entitled to sell coal under its ordinary name of Lochgelly splint coal.