Scottish Court of Session Decisions

This was an action at the instance of the testamentary trustees of the late William Crawford, china merchant, Stirling, heritable proprietors of the Golden Lion Hotel, King Street there, against James Lennox, hotel-keeper, the tenant of that hotel, brought in the Sheriff Court at Stirling.

The pursuers prayed the Court “to interdict the defender from using in any way upon or in connection with the Station Hotel, Stirling, a gilt figure or trade sign of a lion, or any painted or printed copy or facsimile thereof which has been used in connection with and recognised as the trade sign of the Golden Lion Hotel, Stirling; to ordain the defender to remove the said figure of a lion placed by him upon the said Station Hotel; to declare that the defender has no right to use the said figure or trade sign of a lion, or any painted or printed copy or facsimile thereof, as a trade sign elsewhere than in connection with the said Golden Lion Hotel.”

The pursuers averred—“(Cond. 2) By lease dated the 10th and 11th days of November 1885 the said William Crawford let to the defender, for the period of ten years from and after the term of Whitsunday 1886, the said hotel, with stables, coachhouses, and other offices attached, which hotel was then only known as ‘The Golden Lion Hotel.’ The said lease therefore expires at Whitsunday 1896. (Cond. 3) The said licensed premises have from time immemorial been known and occupied as the Golden Lion Hotel, and further back than the memory of anyone there has always been a figure of a lion emblazoned as a sign on the front wall at the entrance to said hotel, and the hotel and the lion have always been associated together. (Cond. 4.) For about thirty years a gilt figure of a lion of about life size has been placed and exhibited over the front door of the said premises, which figure was fixed and attached to the building of the hotel by an iron bar and some kind of cement. (Cond. 5.) About four years ago the defender purchased another hotel in Stirling situated in Murray Place, and known as the Station Hotel, and since Whitsunday 1892 he has carried on business there as well as at the Golden Lion Hotel. (Cond. 6.) Since entering into occupation of the Station Hotel, the defender has endeavoured in various ways to divert the business which he previously carried on at, and which legitimately belonged to, the Golden Lion Hotel to the Station Hotel. He has ceased to give frequenters of the Golden Lion Hotel the comfort and attention which they were accustomed to and entitled to expect in a first-class hotel like the Golden Lion Hotel. He has also removed from the Golden Lion Hotel to the Station Hotel almost every good article of furniture which he had in the Golden Lion Hotel, including the billiard table, all with the view of injuring the Golden Lion Hotel. (Cond. 7.) About the month of July 1895 the defender, with the view of further injuring the Golden Lion Hotel, and transferring its business to the Station Hotel, removed, without warning to the pursuers, the said gilt figure of a lion from its position above the door of the Golden Lion Hotel, and placed it upon the Station Hotel. (Cond. 8) It is believed and averred that the defender has formed a scheme for ruining the business of the Golden Lion Hotel. The removal of the gilt figure of the lion from the Golden Lion Hotel, with which it was used as a trade sign and has been associated for so many years, and the placing of it over the Station Hotel, was done solely for the purpose, amongst others, of misleading the public into believing that they were going to the Golden Lion Hotel; that the Golden Lion Hotel had ceased to exist; and that the proprietor of the Station Hotel had acquired the right to use the golden lion, and so the right of the proprietors of the Golden Lion Hotel. There is only one bus used for conveying travellers from the railway station to both hotels, and after leaving the station the bus is drawn up at the door of the Station Hotel, where the gilt figure of the lion may be seen, and travellers going to the Golden Lion Hotel but who may be unacquainted with the outside appearance of the latter alight under the impression that it is the Golden Lion Hotel, this being heightened by the figure of the lion over the Station Hotel. (Cond. 9) With the view of leading the public to believe that the Station Hotel has right to the business and trade sign of the Golden Lion Hotel, the defender has placed in all the rooms of the latter a ticket similar to the one produced herewith, and has circulated in Stirling and neighbourhood a list of charges for carriages from the Station Hotel, which list bears on one corner an impression of a lion. Further, the defender in making up his bills for charges to frequenters of the Golden Lion Hotel and the Station Hotel, does so on forms with the name of the Station Hotel, and which forms have also an impression of a lion. (Cond. 11) The defender has been requested to remove the said figure of a lion from its position over the Station Hotel and to return it to its place on the Golden Lion Hotel, but he refuses or delays to do so, and the present action has thus been rendered necessary.” They also averred (Cond. 10) that they had sustained and would still further sustain loss and damage through the actings of the defender, for which loss and damage they reserved their right of action.

They pleaded—“(1) The said gilt figure of a lion having been recognised as the trade sign of the Golden Lion Hotel, Stirling, the defender is not entitled to use it in connection with the Station Hotel or elsewhere than in connection with the Golden Lion Hotel, and interdict and declarator to that effect ought to be granted as craved. (2) The defender having improperly and without authority placed the said gilt figure of a lion over the Station Hotel, ought to be ordained to remove same as craved. (3)

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The defender having stated no relevant defence, the pursuers are entitled to decree as craved.”

The defender pleaded—“(2) The pursuers' averments are irrelevant and insufficient in law to support the prayer of the petition. (3) The figure of the lion in question being the property of the defender, and the pursuers never having had any right or property therein, or to the figure or sign of a lion in connection with their premises, the defender should be assoilzied from the petitory conclusions of the prayer. (4) The pursuers never having had any property or right in the trade sign of a lion in connection with their premises, interdict should be refused. (6) In any event, the pursuers not having any property in or exclusive right to the use of a figure of a lion in connection with their premises, the defender is entitled to absolvitor from the declaratory conclusion of the prayer of the petition. (7) The defender being entitled to place the figure of a lion on his Station Hotel, and to apply it on tickets, lists, billforms, and other documents in connection therewith, should be assoilzied, with expenses.”

It was also averred by the defender, and ultimately conceded by the pursuers, that the figure of the golden lion had been made about thirty years ago for a former tenant and paid for by him, and that it had been purchased by the defender from his predecessor, and was now his property.

Forms of bills of charges used by the defender at the Golden Lion Hotel and at the Station Hotel respectively were produced. On both there appeared an identical figure of a lion couchant. On the former the heading was “Golden Lion Hotel, King Street, Stirling, James Lennox, lessee,” and on the latter “Station Hotel (late Hendry's), Stirling, James Lennox, proprietor (late of Golden Lion Hotel).”

A card was produced containing “List of charges for carriages from the Station Hotel,” the title-page of which bore a lion identical with those already referred to, and “Station Hotel, Stirling, James Lennox, Proprietor.”

Cards advertising the two hotels were also produced. Both of these displayed a figure of a lion, but the figures were not the same.

A photograph was also produced, from which it appeared that the defender had placed the “Golden Lion” on the top of the Station Hotel and not over the porch, where it had stood at the Golden Lion Hotel, and that both on the front of the house and on the side towards the station there appeared in large and conspicuous letters the words “Lennox's Station Hotel.”

On 7th March 1896 the Sheriff-Substitute ( Buntine) issued the following interlocutor:—“Repels all the pleas stated for the defender, and interdicts, ordains, and declares all in terms of the conclusions of the petition.”

Note.—“The following facts are admitted on record:—The premises now known in Stirling as the Golden Lion Hotel have been used as an hotel with a licence for nearly one hundred years. For more than thirty years this hotel has gone by the name of the Golden Lion Hotel, and for the same period the gilded figure of a lion couchant, which has been recently removed by the defender, has been fixed over the front door.

There can be little doubt that this long usage of name and trade sign created a property in the person of the owners of the hotel in both the name and trade sign, and that they have a right to interdict against any other person calling an hotel in Stirling by the same name, or placing over it the same trade sign— Great North of Scotland Railway Company v. Mann, 19 R. 1035.

The pursuers are the owners of the hotel, while the defender has a ten years' lease which expires at Whitsunday next.

He some four years ago became proprietor of another licensed house in Stirling, called the Station Hotel, which he carried on in connection with the Golden Lion, and which he proposes to carry on when his lease expires at Whitsunday next.

For some reason, which he does not explain, in the month of July last the defender removed the gilded figure of the lion from its place over the door of the Golden Lion Hotel, and set it up above the door of his new hotel, the Station Hotel.

It is not material to the present case whether the defender is the owner of this gilded image or not. The Sheriff-Substitute has come to the opinion that even if he was owner of it, and so entitled to remove it from its old place over the door where it had stood for so many years, he is not entitled to place it, or any figure resembling it, over the door of any hotel in Stirling. It is certain that a large sign such as this would mislead the public, and this is made doubly certain when the actual image is itself appropriated, and that by the man who had formerly a right to use it as an hotel sign.

The question in all such cases as the present depends upon whether or not the use complained of involves misrepresentation and consequent misleading of the public, and injury to the owner's interest.—See Lord Kyllachy's opinion in Cowan v. Miller, June 28, 1895, 22 R. 833.

The Sheriff-Substitute is of opinion that the use of this trade sign over the door of the Station Hotel is of necessity misleading, and thus injurious, or is likely to injure the pursuers by robbing them of custom which had been earned by the reputation of the house over which the sign had been placed in the past.

Accordingly he is satisfied that the pursuers are entitled to the remedy they seek without any proof.”

The defender appealed to the Second Division of the Court of Session, and argued—The pursuers' averments were irrelevant. It was not averred that the public had been misled by what the defender had done. In Great North of Scotland Railway Company v. Mann, July 15, 1892, 19 R. 1035, it was proved that individuals had been misled, and that letters and parcels had gone astray. There was nothing like

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that alleged here. It was impossible to suppose that any sensible person could be misled by anything the defender had done. An hotel conspicuously designed as “Lennox's Station Hotel” could not be mistaken for The Golden Lion Hotel merely because there was a golden lion on the roof. This case was a fortiori of Charleson v. Campbell, November 17, 1876, 4 R. 149; and Mason v. Queen, April 8, 1886, 23 S.L.R. 641. In Cowan v. Millar, June 28, 1895, 22 R. 833, there was a clear attempt to deceive former customers into the belief that the defender was carrying on business in the old premises. There was no case of this kind in which interdict had been granted without a proof, and at least the Sheriff-Substitute's interlocutor must be recalled and a proof allowed.

Argued for the pursuers and respondents—The public might as easily be deceived by the use of a device as by the use of a name. The use made of the figure of the golden lion here was calculated to mislead the public— Great North of Scotland Railway Company v. Mann was therefore an authority in pursuers' favour. The name “Station Hotel” was not sufficiently distinctive to prevent mistake—see Charleson v. Campbell, cit. There was no conceivable object which the defender could have in view except to mislead people who wished to go to the Golden Lion, into coming to his new hotel instead. It was not necessary, however, to aver and prove fraudulent motives if the natural result of defender's actings was to mislead the public, which was the case here. At least the pursuers were entitled to a proof of the averments in art. 8 of their condescendence. There was no case in which a proof of such averments had been refused.

At advising—