Scottish Court of Session Decisions

This was a process of suspension and interdict at the instance of Mrs Catherine Moritz or Boswell, widow and sole trustee of Alexander Boswell, portmanteau manufacturer, Hanover Street, Edinburgh, against Isabella Mathie, otherwise B. G. Mathie, brush, trunk, &c., manufacturer, Hanover Street, Edinburgh.

The complainer craved the Court “to interdict, prohibit, and discharge the respondent from designing herself upon bill-heads, or labels or circulars issued by her, or in advertisements, or in any other manner, as late manager to Alexander Boswell, trunk manufacturer, Hanover Street, Edinburgh, or as ‘late manager to Mr A. Boswell,’ or as ‘late manager to Mr A. Boswell, 5 Hanover Street,’ and further, to interdict, prohibit, and discharge the said respondent from painting, or otherwise affixing or inscribing, the name of the said Alexander Boswell on or to the door or outside of the respondent's shop, or on or to the windows or blinds thereof, or on the bill-heads, labels, circulars, or advertisements used in her business, or from otherwise using the name of the said Alexander Boswell in such a manner as to lead to the belief that the respondent is carrying on the business of the late Alexander Boswell, or that the respondent is in any way interested in the business of the said Alexander Boswell, now carried on by the complainer, or that the business of the late Alexander Boswell is carried on in the respondent's shop at No. 5 Hanover Street.” The respondent had been formerly in the employment of the complainer's husband A. Boswell. She entered his service as a shop girl, and had then become a saleswoman. She had admittedly been cashier and bookkeeper, and she averred that she was also his manager, and had continued to manage the business after he died till she left the complainer's employment in June 1883. Her shop was directly opposite the complainer's in the same street. The windows, of which there was one on each side of the door, had semi-circular tops, behind the glass of which, i.e., the part within the semi-circle, were white cotton blinds on which was printed in large Roman capitals in black, “M. Mathie from A. Boswell.” Inside the lower or rectangular part of the windows were also white cotton blinds, on which appeared in somewhat larger letters the same words so arranged that when the blinds were drawn up a certain distance the words “A. Mathie from” were concealed, leaving displayed only “A. Boswell,” and it was proved that they were frequently so drawn up. The complainer alleged that the respondent was so conducting her business as to deceive or at least to mislead the public into the belief that she was carrying on the late Mr Boswell's business.

The following was an example of the advertisements complained of—

“B. G. Mathie,

Portmanteau, Trunk, Bag, and Brush

Manufacturer

(Late manager to Mr A. Boswell),

Begs to intimate to the nobility, gentry, and the public at large, that she has opened that shop No. 5 Hanover Street, and is carrying on the same kind of business exactly as her late employer, and by keeping the same quality of goods at a much cheaper rate, trusts to be favoured with their orders.”

The following was a circular complained of—

“ Miss B. G. Mathie

Portmanteau Manufacturer,

5 Hanover Street, Edinburgh.

Miss B. G. Mathie ( late Manager to Mr A. Boswell) begs to intimate that she has opened that shop No. 5 Hanover Street, and is carrying on the same kind of business as her late employer; and by keeping the same quality of goods at a much cheaper rate, and strict personal attention to business, hopes to merit a share of your Orders,” &c.

The labels and bill-heads complained of were in similar terms.

The Lord Ordinary, after a proof, fr m which the facts so far as not already stated fully appear, granted interdict as craved.

“ Opinion.—The complainer Mrs Boswell is trustee of the late Alexander Boswell, portmanteau manufacturer in Edinburgh, and still carries on that business in Hanover Street there. The respondent, who was formerly in Mr Boswell's employment, now carries on a similar business on her own account, in a shop No. 5 Hanover Street, nearly directly opposite the complainer's shop. No. 5 Hanover Street was about four years ago temporarily occupied by Mr Boswell while some alterations were being made on his own premises.

In this suspension the complainer seeks to have the respondent interdicted, in the first place, from designing herself upon bill-heads, labels, &c., or in advertisements or otherwise, as late manager to Alexander Boswell, trunk manufacturer, Hanover Street, Edinburgh, or as late manager to A. Boswell; and in the second place, from painting or otherwise affixing or inscribing the name of Alexander Boswell on or to the door or outside of her shop, or on or to the windows or blinds thereof, or on the bill-heads, labels, circulars, or advertisements used in her business, or from otherwise using the name of Alexander Boswell in such manner as to lead to the belief that she is carrying on the business of the late Alexander Boswell, or that she is in any way interested in the business of Alexander Boswell, now carried on by the complainer, or that the business of the late Alexander Boswell is carried on in her shop at No. 5 Hanover Street.

The law applicable to the case appears to me to be clearly stated by the Vice-Chancellor Kindersley in the somewhat similar case of Glenny v. Smith, 13 Law Times, p. 11.

There is no question,’ he says, ‘that if a person has been in the employ of a firm of reputation, and sets up for himself, he has a right, in any way he thinks fit (provided it is entirely consistent with truthfulness), to communicate to any member of the public that he has had the advantage of being in such service, and may appropriate to himself some of the benefit arising from the character and reputation of his late employer. But it is obvious that it behoves him in so doing to take special care that it is done in such a manner as not to deceive the public, and it does not signify for the purpose of the plaintiff's right of relief whether the defendant has been doing it fraudulently or not.’

If such be the law applicable to the present case, the first question which arises is, whether it is entirely consistent with truthfulness that the respondent was late manager to Mr A. Boswell.

If the statement is true, then the respondent

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is entitled so to design herself; but if it is not true, I think she is not, because, being untrue, she is merely appropriating to herself a benefit arising from the character and reputation of her late employer to which she is not entitled.

The character and reputation of a business is acquired by its management, and the statement that she was manager of the complainer's business, suggests to the public that its character and reputation was due to her, and that such management is no longer to be found at the complainer's shop, but at hers,—a state of matters which, if true, would be clearly prejudicial to the complainer's business, and correspondingly beneficial to the respondent's, but if not true, then a benefit which she is not entitled to appropriate to herself.

A great deal of evidence has accordingly been directed to this point. I do not think it necessary to refer to it in detail. The result of it appears to me to be, that it shows that the respondent was never in any proper sense manager of Mr Boswell's business. Mr Boswell had always managed the business himself, and when he was laid aside more or less from business for some months at a time, during the two or three last years of his life, he appointed no one to act as manager in his place; it was an old established business, which went on very regularly, and it appears to me that during his occasional absences the various persons employed did their best in their respective departments to keep the business going. The respondent was cashier, and it was her duty in that capacity to keep the books and attend to the correspondence, to receive the cash and pay the accounts and wages. Naturally in Mr Boswell's absence she had some additional duties thrown upon her, and from her position was probably more consulted by the others in the establishment than when Mr Boswell was there. But I see no sufficient evidence that she ever received the charge of the business, or exercised any general management of it. In short, I do not think she was the manager of the business.

The next question is, whether the respondent has painted, affixed, or inscribed the name of Alexander Boswell on the door, windows, and blinds of her shop, or on her bill-heads, &c., in such manner as to lead to the belief that she is carrying on the business of the late Alexander Boswell?

I need not attempt to describe what she has painted on the door, windows, and blinds of her shop, because a model has been produced which shows it very distinctly, and specimens of the bill-heads, advertisements, &c., used by her, have been produced.

I do not think it necessary to consider a priori whether what the respondent has done in this respect is calculated to lead to the belief that she is carrying on Mr Boswell's business, because there is indisputable evidence from various members of the public that they have, in point of fact, been deceived, and those cases which have been discovered can only be taken as particular instances of what must have occurred in many undiscovered cases. Indeed, the evidence of the respondent herself is conclusive on this point. She says—‘I don't consider it is unfair to use the name “Boswell” as it is shown on my windows. I am aware that customers have come to my shop because of the exhibition of the name “A. Boswell.” (Q) But you persisted in using the sign which brought them?—(A) I don't know it was through that sign that they came. I had issued circulars and published advertisements, and I thought the people had come to try me. People have come who found they were at the wrong shop. I believe these mistakes were caused by the trunks being at the door, and the name perhaps. I did not alter the inscriptions, because I took advice, and was told I had a right to continue them. (Q) You found it beneficial?—(A) Yes. (Q) As bringing people by mistake into your shop?—(A) Yes. (Q) And you are determined to adhere to it if the law allows?—(A) I suppose so. I have drawn up the blinds as a rule since Mrs Boswell objected to the blinds. I ceased to show “A. Boswel” after the end of November. (Q) Was that not because you were told you could not scrape through in Court with that?—(A) No. I made the change because I thought my shop looked better with just one “Boswell” seen. It was stupid to have two “Boswells” coming together. (Q) The others were enough to bring the people in by mistake?—(A) I did not do it with that intention. (Q) But you find it has that result?—(A) It has in a few cases.’

It is not necessary for the complainer to show that the inscriptions in question were intended to deceive the public, if they have that result, but the mode in which the inscription on the blinds was at first exhibited_ points very clearly to what the respondent's intentions were.

It appears to me, accordingly, that the respondent in making known to the public her connection with the business of the late Alexander Boswell, in place of taking special care to do so in such a manner as not to deceive the public, has done so in such a manner as certainly to deceive them, and has persisted in doing so after she knew that the public were being deceived.

I have had some difficulty as to the terms in which interdict should be granted. The combined result of what the respondent has done, by way of painting her shop door, windows, and blinds, is that the public has been misled, and therefore I think she must be interdicted from continuing the present inscriptions, although one or more of them, taken by themselves, might be unobjectionable. To what extent, by alteration or deletion, they might be rendered unobjectionable, I do not see that the Court are called upon now to determine. I think the onus must be put upon the respondent of so advertising herself as not to deceive the public, and therefore that interdict may be granted in the general terms in which it is asked.

I was also referred to the case of Hookham, L.R., 8 Ch. App. 91.”

The respondent reclaimed.

In the Inner House the respondent's counsel gave an undertaking, on her behalf, to remove the blinds above described, and to cease describing herself on her bill-heads or otherwise as “late manager to A. Boswell,” reserving to her the right to state that she had been in the service of A. Boswell.

At advising—