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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Dunlop Pneumatic Tyre Co., Ltd v. Dunlop Motor Co., Ltd [1907] UKHL 977 (24 July 1907)
URL: http://www.bailii.org/uk/cases/UKHL/1907/44SLR0977.html
Cite as: 44 ScotLR 977, [1907] UKHL 977
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SCOTTISH_SLR_House_of_Lords
Page: 977↓
House of Lords.
(Before
v.
( Ante, July 20, 1906, 43 S.L.R. 784, 8 F. 1146.)
Subject_Trade Name — Infringement — Personal Name.
Facts:
The Dunlop Pneumatic Tyre Company was a company of world-wide reputation whose chief business was the manufacture and sale of “Dunlop” tyres, but which also supplied motor accessories. To these the name “Dunlop” was also usually attached, but had not become appropriated. It sought to restrain from the use of the name “Dunlop” the Dunlop Motor Company, Limited, a small company formed in 1904 by two brothers Dunlop in Kilmarnock, where they had been since 1898 carrying on the business of cycle and motor repairing under their own names, R. & J. F. Dunlop. The objects of this company were the manufacture and sale and repair of motors, and the supply of motor accessories, but from its size the company's business was restricted to the sale on commission of motors, their repair, and the supply of the accessories. There was no evidence of anyone dealing with it in the belief he was dealing with the Dunlop Pneumatic Tyre Company.
Held that there was not sufficient similarity in the businesses carried on, or sufficient likelihood of confusion in the mind of the public to entitle to the restraint sought.
This case is reported ante ut supra.
The Dunlop Pneumatic Tyre Company, Limited (the complainers), appealed to the House of Lords.
At delivering judgment—
I think the pursuers in this case fail upon the facts. It is not necessary to enter into the evidence in detail. In each case it nearly always is a question of fact as it is here. The real complaint in this case was as to the use of the name “Dunlop.” That name is the true name of the two brothers who got up the respondent company. I can see very little proof that anyone was misled by its use, and I can see no proof that any article was bought by anyone from the respondents in the belief that they were a branch of the appellant company. The two companies do not to any considerable extent in fact deal in the same articles, and I see no ground for thinking that the little repairing business in Kilmarnock does or can do any unlawful harm to the appellant company.
I am therefore of opinion that this appeal ought to be dismissed.
These goods were principally tyres—and the name of the appellants' company, the Dunlop Pneumatic Tyre Company, so represents. Other goods, accessories used in relation to and on and about motor cars and bicycles, were also manufactured and sold by the appellants.
Previously to the year 1904 two brothers, Robert and John Fisher Dunlop, had carried on a small business at Kilmarnock under the style of R. & J. F. Dunlop. The principal business of this firm was that of selling and repairing bicycles and tricycles.
In 1904 a small company with very limited capital was formed under the name of the Dunlop Motor Company for the purpose of selling (on commission) and repairing motors and motor cycles and parts thereof.
The business carried on by this—the respondents'—company was a small local trade in Kilmarnock, and consisted principally in the repairs of motor cars and the sale of petrol.
The complainers, the appellants, seek to prevent the respondents' company from carrying on its business under the name of the Dunlop Motor Company, on the ground that the use of such name is calculated to deceive the public into purchasing the respondents' goods in the belief that such goods are those of the appellants'.
In my judgment the appellants have failed in making out this contention. They do not allege that they sell motors or any other vehicles, but they do deal in parts or accessories of such vehicles, viz., tyres, pumps, and other adjuncts, and they allege
Page: 978↓
Now, in what does the deception consist, and who were the persons deceived?
The complainers have no claim to the exclusive use of the name Dunlop. It is a common name in Scotland. The respondents had traded as R. & J. F. Dunlop. The appellants have chosen to announce themselves as the Pneumatic Tyre Company preceded by the name Dunlop, and their case seems to be that having done so they can shut out persons named Dunlop from employing that name in connection with a company at all similar in object to the tyre company. I agree that the objects of the two companies need not be absolutely identical in order to entitle the complainers to relief, but there must be great similarity. In this case I do not think that the measure of similarity established is sufficient either in the name employed or in the nature of the trade sought to be carried on.
The complainers say we are a pneumatic tyre company. The respondents represent themselves to be a motor company. Then, as I have said, the tyre company does not sell motors. The motor company appears to do so, or at least seeks to do so. If in respect of some minor articles there might be a common production, yet the main objects of the two businesses are different.
As to these minor articles I agree with the view expressed by Lord Kyllachy, that the complainers have not proved that they have any exclusive right in connection with the sale of those articles to the use of the name Dunlop, nor have they proved that the name in question has any special reputation or value in connection with such minor articles.
Then, secondly, who are they who will be deceived by the name used by the respondents? It appears to be admitted that an ordinary business person would not be misled, but it is alleged that the unwary would. Well of course there are unwary people in this world, but I think that a man who employs his own name in carrying on his business has the right to regard the people whom he may attract as being capable of exercising and being in the habit of exercising thought; and I cannot differ from the judgment of Lord Low, in which he says:—“Anyone who took the trouble to think about the matter would see that the respondents' company was a motor company and the complainers a tyre company. I do not think that the respondents are liable to have their business practically stopped unless they change their name simply because a thoughtless person might unwarrantably jump to the conclusion that they were connected with the complainers.”
Under the circumstances of the case before your Lordships I do not think that the average citizen of Kilmarnock would be deceived, and I cannot speculate upon the degree of unwariness that would induce the confusion necessary to support the appellants' claim.
It is not without full consideration of the very lucid judgment of the Lord Ordinary that I have come to the conclusion that the decision appealed from is correct, and that therefore this appeal should be dismissed.
Their Lordships dismissed the appeal with costs.
Counsel for the Appellants— Sir Robert Finlay, K.C.— Clyde, K.C. Agents— Deas & Company, W.S., Edinburgh— John B. & F. Purchase, London.
Counsel for the Respondents— Upjohn, K.C.— Hon. W. Watson. Agents— Campbell & Smith, S.S.C., Edinburgh— John Bartlett, London.