Scottish Court of Session Decisions

LORD HILL WATSON'S OPINION.—[After quoting the prayer of the petition, as amended]—The action is one for "passing off," and, before discussing the facts, I propose to deal with the law applicable to a case of this nature. A very large number of authorities were cited to me, and I set forth the legal propositions relevant to the present action which, in my opinion, fall to be deduced therefrom. I do not quote the passages from the opinions of the Judges upon which I rely, but merely give a reference to them.

1. No man has a right to sell his goods as though they were the goods of another, or, to express this principle more fully, one man is not entitled to sell his goods under such circumstances, by the name, or the packet, or the mode of making up the article, or in such a way as to induce the public to believe that they are the manufacture of someone else—Cellular Clothing Co. v. Maxton & Murray, (1899) 1 F. (H. L.) 29, Lord Halsbury, L.C., at pp. 30 and 32; Reddaway v. Banham, [1896] A C 199, Lord Halsbury, L.C., at p. 204, Lord Herschell at p. 209, Lord Macnaghten at pp. 215—216; Weingarten Bros. v. Bayer & Co., (1905) 22 R. P. C. 341, Lord Macnaghten at p. 349; Kerly on Trade Marks, (7th ed.) pp. 508, 570.

2. In order to obtain redress in an action for passing off, the trader who sues must prove that his goods are known to and recognised by the public, or by a particular section of the public who deal in that type of goods, by a particular name, mark, get-up or other accompaniment, which is associated in their minds with his goods alone. It is immaterial whether the name or mark is a registered trade name or a registered trade mark, or whether the get-up includes a registered design, or whether the actings of the trader who is sued do or do not constitute infringement—Kerly, pp. 387 and 550.

3. The actings of the trader who is sued must satisfy the Court that there is a likelihood of the public or the particular section of the public being misled into thinking that the goods are the goods of the trader who sues. It is not essential that the trader who sues should prove actual instances of confusion having taken place, but, if such are proved, the Court will more readily grant interdict—Kerly, p. 577.

4. A trader has no property in a trade name, trade mark or particular get-up. The object of the action is to protect the goodwill of the trader who sues. Goodwill, being invisible, is represented by visible symbols such as trade names, trade marks, get-up and other accompaniments associated with the goods of a particular trader. Every article which is sold by such a trade name or bears such a trade mark, get-up or accompaniment has behind it an element of the particular trader's goodwill and reputation, and a rival or second trader, by adopting that trade name, trade mark, get-up or accompaniment, or a substantial part of it, with the result that the public are misled into thinking that the goods of the second trader are the goods of the first trader, commits an actionable wrong and appropriates to himself part of the goodwill of the first trader—Spalding v. Gamage, (1915) 32 R. P. C. 273, Lord Parker of Waddington at p. 284.

5. The get-up of goods comprises the size and shape of the package or container, labels and wrappers, the dress in which the goods are offered to the public. No trader, by adopting and using a particular style of get-up, thereby acquires a right to prevent a rival or second trader using the same or a similar get-up, unless the get-up of the first trader has become so associated in the minds of the public with the first trader's goods as to be distinctive of the goods of the first trader and of no other. It is unusual that any single feature of the get-up of goods is so associated with a particular trader's goods that a second trader cannot make use of it, but, if it is proved that a single feature of a trader's get-up is so peculiar that it above all else catches the eye and is retained in the memory of the purchasing public, and that the purchasing public recognise the goods of the trader by this one feature alone, then a second trader may be prevented from adopting this peculiar feature of the first trader's get-up and so misleading the public. A part of the article sold which is useful may, if peculiar, be part of the get-up of the goods and may become associated with and distinctive of a particular trader's goods—Edge & Sons v. Niccolls & Sons, [1911] A C 693, Lord Gorell at pp. 701–704; Kerly, p. 572.

Counsel for the respondents disputed certain of these propositions. He maintained that it was always permissible to copy a single feature of a rival trader's get-up. He relied upon certain passages in Kerly, who, when dealing with this matter, always uses the plural, and in particular upon the passage at the foot of page 573. He argued that cases relating to trade names and trade marks were irrelevant, since they had always been recognised at common law, but that get-up was a modern innovation. He relied upon the dicta of Fletcher Moulton, L.J., in The J.B. Williams & Co. v. Bromley & Co., (1909) 26 R. P. C. 765, at p. 773, to the effect that get-up means a capricious addition to the article and that nothing that has a value in use is part of the get-up. With deference, I do not agree with this expression of opinion and prefer the statement in Kerly on page 572 that a special design of a useful part of an article may form part of the get-up. It may be that there is no reported case in Scotland or England in which one particular and peculiar feature of the get-up of goods had become associated with and distinctive of a particular trader's goods so as to found an action of passing off, but the proposition which I have stated appears to me to follow from, and to be merely an example of, the fundamental principle stated in my first proposition. It is quite impossible to lay down and enumerate all the possible ways in which one trader may pass off his goods as the goods of another and cases dealing with trade names, trade marks or get-up are all just examples of particular methods of passing off.

6. In dealing with ordinary cases where articles are sold to the public whole and unopened you must look at the get-up as a whole, and you must treat the labels on the goods fairly in ascertaining whether or not the public is likely to be misled—Schweppes v. Gibbens, (1905) 22 R. P. C. 601, Lord Halsbury, L.C., at p. 606, Lord Lindley at p. 607; but to place the articles side by side is not always the right test—Seixo v. Provezende, (1865) L. R., 1 Ch. 192, Lord Cranworth, L.C., at pp. 196–197. The member of the public who falls to be considered is a person with reasonable apprehension and proper eyesight—Coleman & Co. v. Smith & Co., (1912) 29 R. P. C. 81, per Cozens-Hardy, M.R., at pp. 88–89

7. A container such as a bottle may be part of the get-up of goods of a trader if it is of a peculiar shape which catches the eye and is retained in the memory of the ordinary purchaser and is associated in the mind of the purchasing public with the goods of that particular trader alone and of no other.

Counsel for the respondents argued that this was not in accordance with the law of Scotland. He pointed out that there was no reported case in which the use of a bottle, even if peculiar in shape, had been protected, and argued that to do so would be an unwarranted interference with the freedom of trade. The Lord Chancellor in Schweppes v. Gibbens recognised that the shape of a bottle might be important, although he mentioned it in conjunction with other matters forming the get-up of the goods. In the United States of America a single Judge has granted interdict in a case of passing off upon the peculiar shape of a bottle containing whisky—Cook & Bernheimer Co. v. Ross, 73 F. 203—and I have been referred to a paragraph headed "Copying Bottles used by Competitor," in an American textbook, Unfair Competition and Trade Marks, by Harry D. Nims, vol. i, p. 349. In my opinion, the proposition I have stated follows from what has been previously stated and is merely another example of a particular method whereby a trader may make his goods recognisable by the public.

8. If the goods of a trader have, from the peculiar mark or get-up which he has used, become known in the market by a particular name, the adoption by a rival or second trader of any mark or get-up which will cause his goods to bear the same name in the market is a violation of the rights of the first trader—Seixo v. Provezende, per Lord Cranworth, L.C., at p. 197;Johnston v. Orr Ewing, (1882) 7 App. Cas. 219, where the goods of the plaintiffs had become known in the Indian market as "Two Elephants" yarn.

9. No trader, however honest his personal intentions, has a right to adopt and use so much of his rival's established get-up as will enable any dishonest trader or retailer into whose hands the goods may come to sell them as the goods of his rival—Lord Watson in Johnston v. Orr Ewing, at p. 232; Lord Watson in Cellular Clothing Co. v. Maxton & Murray, at p. 33; Lever v. Goodwin, (1887) 36 Ch. D. 1, per Chitty, J., at p. 3; Star Cycle Co. v. Frankenburgs, (1907) 24 R. P. C. 405, per Buckley, L.J., at p. 415; Boord & Son v. Bagots, Hutton & Co., [1916] 2 A. C. 382, per Lord Buckmaster, L.C., at p. 391.

Counsel for the respondents disputed this proposition. He pointed out that the dicta in the cases mentioned dealt with trade marks and not get-up. This is correct, but, in my opinion, the proposition follows from the ratio of these dicta. Counsel for the respondents maintained that an innocent trader should not be held responsible for the actings of a fraudulent retailer and cited in support of this proposition the dicta of Lord Macnaghten in Hennessy & Co. v. Keating, (1908) 25 R. P. C. 361, at p. 367, and in Payton & Co. v. Snelling, Lampard & Co., [1901] A C 308, at p. 311, and Kerly, p. 576. He further maintained that the dicta of Lord Watson and Lord Macnaghten were irreconcilable and that on principle the dictaof Lord Macnaghten should be preferred. I do not think that there is any inconsistency in these dicta. The facts and circumstances of each case decide whether it falls within one set of dicta or the other. If the innocent trader enables the dishonest retailer to carry out a fraud upon the purchasers having regard to the market in which the goods are sold and the type of customer who buys, then he may be interdicted. In Johnston v. Orr Ewing the trader who was interdicted adopted a ticket for his goods depicting two elephants which differed in certain respects from the two elephant ticket which was the established mark of the trader who sued, but the fact that both tickets depicted two elephants enabled a dishonest retailer to mislead the ignorant customers in the Indian market by displaying to them the ticket. The second trader accordingly supplied the dishonest retailer with a weapon with which he was able to perpetrate the fraud. In the case of Payton & Co. v. Snelling, Lampard & Co. the two labels on the tins of coffee were distinct in respect that one bore the name "Royal" and the other "Flag," and the dishonest retailer, in order to carry out the fraud, would require to hide the tin and the label from the customer. The customer, when he made the purchase, would get the tin into his own hands and would see the difference in the labels, and the chances of deception would be remote.

10. The actings of a trader who copies a rival's established get-up need not be fraudulent and he need have no intention of obtaining any benefit from his rival's goodwill and reputation—indeed he may be ignorant of his existence—but, if the result of his innocent actings is that the public are likely to be misled, he will be interdicted—Lord Halsbury, L.C., in Cellular Clothing Co. v. Maxton & Murray, at p. 31. If, however, the Court is satisfied that the trader who is sued intended to obtain some benefit from his rival's established get-up and was thus fraudulent, the Court will be more ready to grant interdict—Kerly, p. 576.

Having dealt with the law, I now turn to the facts. Evidence as to the petitioner's business was given by their managing director, Mr Percy H. Hogg, who joined the petitioners in May 1947. The petitioners are a company incorporated under the Companies Acts in 1894. They and their predecessors in business have continuously carried on business as distillers and sellers of whisky since 1627. They market two brands of whisky, "Gold Label" and "Dimple Scots," or "Dimple"; as it is more commonly styled. A representation of the two bottles appears in the advertisements in No. 62 of process. The "Dimple Scots" or "Dimple" whisky is sold in a bottle which is known technically as a three-pinched decanter but is popularly styled a "dimple" bottle. No. 8 of process is a specimen of a three-pinched decanter containing the petitioners' whisky. The petitioners blend and market this brand of whisky under registered trade marks which are set forth in Nos. 31 and 32 of process. No. 327580, "Dimple Scots," was registered on 13th October 1910; the labels appearing on the bottle, No. 436962, on 9th May 1923; a pictorial representation of the bottle with caption underneath, No. 437421, on 23rd May 1923; a somewhat similar trade mark showing the caption and a pictorial representation of the bottle with the words "Dimple Scots" (Pinched Decanter), No. 437422, on 23rd May 1923; the word "Dimple," No. 475179, on 23rd November 1926; and the pictorial designs used on the three-sided container, No. 577878, on 15th June 1937. All these trade marks are still in force. It is probable that "dimple" bottles were used from 1910. It appears from No. 59 of process that a supply of such bottles was obtained from a firm Johnsen & Jorgensen, Limited, in 1913, and since 1923 they have been obtained from the United Glass Bottle Manufacturers, Limited, as shown by No. 60 of process. Prior to the war these bottles were enclosed in a wire mesh envelope. This was discontinued in 1941 owing to the difficulty of obtaining supplies of wire mesh. Mr Hogg explained that, quite apart from the present case, the petitioners had decided to reintroduce the wire mesh envelope, and this is corroborated by No. 61 of process, being an invoice for wire mesh from Messrs Fenton & Smellie, Glasgow, dated 11th June 1952. The pursuers' sales of their Dimple whisky in this particular type of bottle have been large. Details of these sales are shown in the statements compiled by the pursuers' accountants, Nos. 102, 78 and 68 of process. The London office sales are not included for the period 1924–1927, and with this omission the total sales in the United Kingdom for the period 1st April 1923 to 31st March 1953 amount to 414,558 cases, as is shown by the last page of an analysis produced by Mr Hogg—No. 103 of process. Very large sums have been expended by the petitioners in advertising their whiskies, as is shown by the accountants' statements previously referred to, totalling, according to counsel for the respondents, £1,835,339. Specimens of these advertisements appear in Nos. 63, 66 and 67 of process. These advertisements depict both types of bottle, the more ordinary dump-shaped bottle in which "Gold Label" is sold, and the peculiar three-pinched decanter or dimple bottle in which "Dimple Scots" is sold. When orders are received for "Dimple Scots" whisky, these are either for "Dimple Scots," as is shown in the documents contained in No. 34 of process, or for "Dimple," as shown by the orders contained in No. 35 of process. Occasionally an order may be given for "Dimple P.D. Scots."

The first-named respondents are a company incorporated under the Companies Acts in March 1952 with the object of, inter alia,carrying on business as whisky blenders, brewers and distillers. The second-named respondents are a company incorporated in 1939 with the object, inter alia, of carrying on business as wine and spirit brokers. Evidence was given on their behalf by Mr George Paton Christie, a director of both companies, and by Mr Russell Paterson, the managing director of the second-named respondents and a director of the first-named respondents. All the trading in the whisky with which this action is concerned has been done by the second-named respondents. The whisky complained of by the petitioners is marketed in a three-pinched decanter or dimple bottle identical in shape with the dimple bottle used by the petitioners, with the exception that the neck of the bottle used by the respondents differs in design from the neck of the bottle used by the petitioners, since the respondents use a cork stopper, whereas the petitioners use a patent stopper. The respondents enclose their bottle in a wire mesh envelope similar to that formerly used by the petitioners. The labels on the petitioners' bottles are in accordance with their registered trade mark, and the labels on the respondents' bottles bear the words "Duncan MacAlpine,Finest Scotch Whisky" and the first-named respondents' name. The labels on the bottles are quite distinct, and I refer to the bottle No. 9 of process, which is a specimen of one of the respondents' bottles containing whisky which may be contrasted with No. 8 of process. The respondents did not produce any documents from which the extent of the sales of this whisky appears, but Mr Christie in evidence stated that their total sales from the spring of 1952 till interdict was granted on 3rd October 1952 amounted to six to seven hundred cases, mostly to public houses. In June 1952 Mr John Campbell, a traveller employed by the petitioners, saw in Blair's Public House, Parliamentary Road, Glasgow, a bottle displayed on the gantry which he thought was one of the petitioners'. It was enclosed in a wire net envelope and appeared to be a petitioners' pre-war bottle. He spoke to the proprietor about it and discovered that it was a bottle of the respondents' whisky, similar to No. 9 of process. He reported the matter to Mr Hunt, the petitioners' manager for the West of Scotland, who instructed him to obtain a similar bottle from Mr Blair, which he did. Another bottle was also obtained, these two bottles being Nos.69 and 70 of process. With the two bottles thus obtained, Mr Hunt, along with his assistants Messrs Campbell and Stewart, made certain tests in five public houses in Glasgow during the months of July, August and September 1952. Evidence was led from the five publicans concerned, and also from various customers to the number of fifteen. The evidence given by the publicans, their customers, and in one instance the barman, was much to the same effect. In each case the bottle of Duncan MacAlpine whisky was placed on the gantry behind the bar where whisky available for consumption is generally displayed. In certain cases this space is normally reserved for a proprietary blend of whisky. Duncan MacAlpine whisky would not in the trade qualify as a proprietary blend, and some criticism was made on this by counsel for the respondents, but I am not greatly impressed by it. In each case the publican placed the bottle so that the label was exposed, but, owing to the fact that certain bars are circular in shape, the label would not be obvious to all the customers in the bar. The evidence from the customers, which varied only in small details, was that on seeing the bottle displayed upon the gantry they assumed from its peculiar shape that it contained the "Dimple Scots" whisky of the petitioners. They ordered whisky, usually by asking for "a half Dimple," and in some instances pointed to the bottle. They were then told either before or after they had drunk and paid for the whisky that the bottle did not contain the whisky of the petitioners but the whisky of the respondents, and in certain instances their money was refunded. In one instance—that of the witness Campbell Carmichael—the customer refused to believe that the whisky was not Haig's, being quite convinced that it was a Haig's bottle. In another instance—that of the customer Kenneth Baird—he gave his order by merely pointing to the bottle and asking for a half. While it is proper and correct that whisky bottles should be displayed so that the labels face the customers, it is quite obvious that when a bar is busy it may happen that a bottle is replaced in such a way that the label is not facing the customers. If this were done, since all the bottles in use have pourers inserted into them and the distinctive caps would have been removed, it would have been quite impossible for any customer, on seeing the bottle containing Duncan MacAlpine whisky, to realise that it did not contain the whisky of the petitioners, and the evidence is conclusive that in a case of that nature any customer familiar with the petitioners' whisky would take it for granted that the bottle contained the petitioners' "Dimple Scots" whisky. In one case in Dougan's Public House in Springburn Road, Glasgow, the barman, James Dunn, on being asked by a customer to supply "a half Dimple" took down the bottle containing Duncan MacAlpine whisky, thinking that it contained the petitioners' whisky, poured the whisky out, and it was only when the proprietor of the public house—Mr James Dougan—told him that it was not Haig's Dimple that he realised that he had made a mistake. Myles Larkin, a barman employed by James Dougan, said that in June 1952, when in Morton's Bar, Gallowgate, Glasgow, he saw a bottle displayed on the gantry which he thought was Haig's but discovered that it was MacAlpine's. Like all the other customers he was misled by the shape of the bottle. When a customer asks for "Haig," he is supplied with "Gold Label" and not "Dimple" whisky. The evidence satisfies me that, in the districts to which the witnesses belonged, the almost universal practice is to ask for the petitioners' "Dimple Scots" whisky by the name of "Dimple" that customers recognise the petitioners' "Dimple Scots" whisky by the peculiar shape of the bottle, which is associated in their minds with the whisky of the petitioners and with whisky of the petitioners alone. If the bar is a circular one, the label may not be visible to all of the customers, and, when the bar is busy, bottles may be replaced so that the label is turned away from the public. In these circumstances, although the barman might be completely innocent, mistakes such as occurred in the case of the barman Dunn might readily take place. The petitioners' "Dimple" whisky is a de luxe brand, and is more expensive than the petitioners' "Gold Label" whisky. If a barman was dishonest it would be very easy indeed for him to display a bottle of Duncan MacAlpine whisky in such a way that the label was not visible to the customers, and owing to the peculiar shape of the bottle he would then be enabled to perpetrate a fraud upon the customer. I am accordingly of the opinion that my ninth proposition in law applies in this case. It may not be generally known to publicans and barmen that the petitioners have registered the name "Dimple," and Mr Hogg explained that the petitioners did not bring this matter to the notice of the traders. All the witnesses adduced for the petitioners, both publicans and customers, associated the peculiar dimple-shaped bottle with the petitioners' whisky and recognised the petitioners' whisky by the peculiar shape of the bottle, and the trade witnesses agreed that it would be wrong for them to serve a customer who asked for "Dimple" with Duncan MacAlpine whisky because it was quite obvious to them that in asking for "Dimple" he desired the whisky of the petitioners. Similar evidence was given on behalf of the petitioners by publicans in Rutherglen, Dunfermline, Aberdour and Dundee. The respondents led evidence from publicans in Greenock, Wishaw and Holytown, who, while maintaining that, when supplied with "Duncan MacAlpine," they at once realised by the label that it was not the petitioners' "Dimple," agreed that the shape of the bottle was distinctive of and associated with the petitioners' "Dimple" whisky.

Evidence was given by Mr Gordon H. Middlemass, managing director of J. & A. Ferguson, Limited, Glasgow, and by Mr I. H. Macdonald, a director of Dymock, Howden & Co., Edinburgh, dealing with the licensed grocers trade in Scotland, and by Mr Charles E. Lissenden, who was in business in the licensed trade in London. These three witnesses gave evidence to the effect that in the trade, of which they had a large and wide experience, the petitioners' whisky was associated with and recognised by the peculiarly shaped dimple bottle in which it was sold. They gave evidence that no whisky had ever been sold in the home market in a bottle of this peculiar shape except the whisky of the petitioners. The respondents' witness, Mr J. D. Horn, chairman of Hiram Walker & Son (Scotland), Limited, gave evidence that in his mind the peculiarly shaped three-pinched decanter or dimple bottle was associated with the whisky blended and marketed by Haig & Haig. This is explained by the fact that this witness dealt exclusively in the export market and in particular the United States of America and the islands in its vicinity. This is explained by the fact that the petitioners do not export whisky to the United States of America but that the export of whisky to the United States of America in a bottle similar to No. 8 of process is done by Messrs Haig & Haig—a company with which they are associated. Mr Horn's evidence in dealing with the export of whisky to the United States of America is revealing. When asked why the three-pinch decanter was sent so much to the United States of America, he replied that as a matter of fact prior to prohibition Haig & Haig's whisky in a three-pinch decanter was the best known brand of whisky in America.

Not one of the many witnesses adduced by the petitioners, either in evidence in chief or in cross-examination, admitted to having ever seen a three-pinched decanter or dimple bottle on sale in the United Kingdom containing whisky other than the petitioners' blend. The only evidence that whisky other than that of the petitioners was ever sold in the United Kingdom in three-pinched decanters is given by the witnesses Messrs Bishop. Mr Michael Bishop gave evidence on commission, and his evidence was to the effect that during the years 1930-1939, when employed by Messrs J. Stonehill & Company, Limited, London, he had sold Vat 33 whisky in three-pinched decanters in and around London to the extent of about fifty cases a year. His brother, Mr David Bishop, gave evidence to the effect that during the same period he had sold some 200–300 cases a year of Vat 33 in three-pinched decanters when he represented the same firm of Messrs Stonehill & Company, Limited. His evidence was to the effect that certain sales were also carried out in Scotland. This evidence was admitted subject to reservation of relevancy and competency. I have considerable doubt as to whether I should give any effect to this evidence, since the respondents, in answer 2 at pages 5, 6 and 7 of the record, have stated in great detail the names of the firms and the name of the whisky other than that of the petitioners which, according to them, has been marketed in three-pinched decanters. Vat 33 appears against the names of James and George Stoddart, Dumbarton. A commission and diligence was obtained to recover the books of, inter alios, this firm, and it would appear that all the Vat 33 whisky dealt with by James and George Stoddart was exported. No documents have been produced vouching the extent to which Messrs J. Stonehill & Company sold Vat 33, the explanation being that the evidence given by Mr Bishop was volunteered by him at a late stage. On the assumption that the evidence is competent, in my opinion it is quite insufficient to outweigh the evidence given by the petitioners. Furthermore, any sales made by J. Stonehill & Company ceased in 1939. In my opinion, the question I have to decide in the present case is whether the peculiarly shaped three-pinched decanter or dimple bottle was associated in the minds of the public with the petitioners' whisky in the spring of 1952, when the respondents first put "Duncan MacAlpine" upon the market in a bottle of the same shape, and accordingly the evidence given by Messrs Bishop is irrelevant to the decision of the point at issue. The interdict originally asked for by the petitioners would have prevented the petitioners selling "Duncan MacAlpine" in a dimple bottle for export. A few days prior to the proof a commission and diligence was obtained to recover the books of various companies mentioned on record, and in particular including Messrs James and George Stoddart, Limited, Messrs Alexander M'Gavin (Bottlers and Blenders), Limited, and other companies. Owing to the late date at which the commission was asked for, it was impossible for the commissioner to obtain extracts from the books unless this was done by photography. This was objected to by counsel for the respondents and also by counsel who appeared on behalf of Alexander M'Gavin, because the sheets which would have been photographed would have shown private information dealing with whisky blended by M'Gavin for their customers. Owing, however, to the industry of the commissioner, there are produced in process certain extracts from these books, Nos, 82, 83 and 84 of process. These extracts show that a certain amount of whisky was placed in bottles of the three-pinched decanter type, but that all this whisky was either exported or used for ships' stores, which, according to the witness Mr Hogg, is treated in the same way as export by the excise authorities. Counsel for the respondents argued that it did not lie in the mouths of the petitioners to say that their whisky was associated with the shape of the bottle, since their advertisement, which was universally recognised, bore the slogan "Don't be vague, ask for Haig," and quoted certain passages in the Judges' opinions in Imperial Tobacco Co. v. Purnell, (1904) 21 R. P. C. 598. I am not impressed by this argument, particularly since it is clear on the evidence that if any customers ask for Haig they get Haig's "Gold Label" and not Haig's "Dimple Scots." In my opinion, I am entitled to draw the inference from the whole evidence in this case that the whisky "Dimple" was called after the peculiar shape of the bottle in which it was placed. Counsel for the respondents argued that this was not proved, since it was spoken to only by Mr Hogg, who joined the petitioners' company in 1947, and was not referred to in documents. Even though Mr Hogg may not have been present at the christening, and I have not had the advantage of seeing the birth certificate, I am quite satisfied that the inference can be drawn. The whole evidence satisfies me that in the spring of 1952, when the respondents first placed upon the market "Duncan MacAlpine" whisky in a three-pinched decanter or dimple bottle, that section of the public, who are in the habit of buying whisky, associated the petitioners' whisky with this peculiarly shaped bottle, and that, if they desired to purchase the petitioners' "Dimple Scots", they asked for a "Dimple," and the reason why they asked for a "Dimple" was because they always assumed that the petitioners' "Dimple Scots" whisky was marketed in a dimple bottle. This is, in my opinion, of great importance, because, if the respondents are allowed to use bottles of this particular shape, then their whisky will also for the same reason become known as "Dimple" and confusion will be created, with resulting loss to the goodwill of the petitioners. I am accordingly of opinion that this is a case to which my eighth proposition in law applies.

On the evidence and on an examination of the two bottles, Nos. 8 and 9 of process, I think there is little risk of confusion, and that a customer of reasonable apprehension and proper eyesight who bought a bottle of the respondents' whisky similar to No. 9 of process would realise that it was not the whisky of the petitioners, and that, when the whisky is sold in an unopened bottle, the goods are sufficiently distinguished by the label. I place little reliance upon the colour of the capsule and the type of stopper. Accordingly I am of opinion that my sixth proposition in law applies in this case. Accordingly, if the trade carried on in the respondents' whisky had consisted solely in the sale of unopened bottles, I should not have been prepared to grant interdict unless I had been very clear that the respondents had acted with the intention of obtaining some benefit from the petitioners' goodwill.

It was maintained by the petitioners that in acting as they did the respondents deliberately intended to obtain some benefit from the petitioners' goodwill and had acted fraudulently. I have found this part of the case the most difficult. [His Lordship referred to the evidence on this point, and proceeded]—Lord Watson had to consider a similar question in the case of Johnston v. Orr Ewing, and expressed his opinion on the matter (at p. 233) in a passage which I adopt mutatis mutandis:—I regret my inability, even upon their own evidence, to come to the conclusion that the respondents had any innocent or honest purpose to serve in adopting this peculiar three-pinched decanter or dimple bottle. I do not wish to suggest that they deliberately copied the petitioners' bottle with the intention of themselves selling their whisky as the petitioners'; but I do think that, in selecting the shape of their own bottle, they did expect to derive some commercial advantage from the use of a peculiarly shaped bottle, which was also used by the petitioners, because of their association with that shape of bottle; they at the same time having a vague, though it might be a sincere belief, that in the event of challenge they would be able to Justify what they did on the ground that they had sufficiently distinguished their own from the petitioners' bottle by the labels. This defence as regards the public house market fails, and the necessary consequence, in my opinion, is that the respondents cannot escape the imputation of having acted from motives not altogether consistent with fair mercantile dealing, and must submit to interdict.

I am accordingly of opinion that, in accordance with the legal propositions which I have set forth, the petitioners in this case are entitled to interdict.

There remains to consider the area over which the interdict should operate. Counsel for the respondents submitted that the evidence was insufficient to entitle the petitioners to any interdict at all, since there were large areas even in Scotland from which no evidence had been led. There is some substance in this criticism but I incline to the view that the evidence is sufficient to justify me in making the interdict apply at least to Scotland. As regards England, I have had no public house evidence at all and the witness Mr Charles E. Lissenden dealt solely with the sale of whole bottles, but I shall hear counsel further upon the exact terms of the interdict to which the petitioners are entitled in the light of my opinion.

On 1st October 1953, after hearing counsel, the Lord Ordinary granted interdict in terms of the prayer of the petition (as amended on the first day of the proof).

LORD HILL WATSON'S OPINION.—I have now heard argument upon the terms of the interdict to be pronounced in light of my opinion dated 26th August 1953. Counsel for the petitioners asked for interdict as set forth on page 1 of my opinion. Counsel for the respondents pointed out that I had reached the conclusion that there was no danger of confusion in the case of sales of unopened bottles and suggested that the interdict should be limited to prohibiting the respondents from supplying or selling for consumption on licensed premises. At first sight this would appear to meet the case, but on further consideration I am of opinion that any interdict granted in such terms would be quite inept. Purchasers of whisky may control off-licensed premises as well as public houses and bars, and in public houses sales of unopened bottles may take place. The respondents, in complying with orders, could not possibly tell whether they were or were not breaking an interdict granted in these terms. If the respondents had led evidence showing that the bulk of their sales were to the public in unopened bottles, then there might have been good reason for refusing to grant any interdict at all, since the damage to the petitioners' goodwill would have been slight. The respondents led no evidence other than that given by Mr Christie to the effect that most of their sales were to public houses. I am of opinion that this is a case in which interdict should be pronounced, and I can find no other satisfactory course than to grant interdict in terms as craved by the petitioners.

As regards the area, counsel for the respondents argued that the area should be limited to Glasgow, or at least Scotland. He pointed out correctly that no evidence was led from public houses in England. The petitioners' evidence showed that their sales extended to England, and, in my opinion, I am entitled to assume from the Scottish evidence that if the respondents sold their whisky in dimple bottles in England similar confusion would arise. Here again I have no evidence by the respondents that they have made any sales in England.If evidence to that effect had been led, the position might have been different, but in the absence of any such evidence I consider I am entitled to proceed upon an inference from the Scottish sales. I shall accordingly grant interdict in terms of the crave of the petition as amended, and in so doing I do not leave out of account the conclusion which I have reached as to the motives of the directors of the respondents. [His Lordship then dealt with the question of expenses.]