United Kingdom House of Lords Decisions

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URL: http://www.bailii.org/uk/cases/UKHL/1916/54SLR0443.html
Cite as: 54 ScotLR 443, [1916] UKHL 443

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SCOTTISH_SLR_House_of_Lords

Page: 443↓

House of Lords.

(On Appeal from the Court of Appeal in England.)

Thursday, November 30, 1916.

(Before Earl Loreburn, Lords Atkinson, Shaw, and Sumner.)

54 SLR 443

Horlick's Malted Milk Company

v.

Summerskill.

Subject_Trade Name — Descriptive Title — Sale of an Article under a Title hitherto Applied only to Certain Proprietary Goods.
Facts:

The respondent offered for sale under the name of “Hedley's Malted Milk” a preparation somewhat similar to the article which had been sold by the appellant company for some years under the name of “Horlick's Malted Milk.” Held that the term “malted milk” was descriptive, and could not be monopolised by the appellant company.

Headnote:

Their Lordships' judgment was delivered by

Judgment:

Earl Loreburn—In my opinion this appeal fails. It is an action to restrain the defendant from using the words “malted milk” as descriptive of his goods, because it is calculated to mislead the public by the supplying of the defendant's goods as and for the plaintiffs'. At the bottom of the contention, which has been very ably urged on behalf of the appellants, lies this question—“Is the term ‘malted milk’ merely a descriptive term?” I will not enter upon the other question as to whether, if it be so, it has been so identified with the plaintiffs' goods as to bestow upon them the right of abstracting these words from the English language and limiting others in their right to use them in trade, because that is a field on which one might say a good deal, and I think it is unnecessary to enter upon that question. The question we really have to consider is what is the meaning of the words “malted milk.”

In my opinion, in accordance with the opinion of Joyce, J., which was confirmed by the Court of Appeal, that expression is merely descriptive of milk which is combined or prepared with malt or with extract of malt. The claim really is to the use of a part of a designation which the plaintiffs have been in the habit of using. They have been in the habit of using the term “Horlick's

Page: 444↓

Malted Milk.” They eliminated the word “Horlick's,” and ask that the remaind er of that description shall be prohibited to the defendant. I do not think, on the ground that these are descriptive words, that that can be done. Of course the question I have been dealing with is a question that lies at the bottom of the right of the plaintiffs and the defendant, but the real point in issue is this—Ought the House to say that we should expect the public to be misled by the use of the term “Hedley's Malted Milk” into buying it as and for “Horlick's Malted Milk?” I do not think so, and although all, I am sure, of the material parts of the evidence which might be relied upon to establish the proposition have been plainly and clearly stated, it does not seem to me that that has been established.

I agree with the opinion of the learned Judge and the opinion of the Court of Appeal.

Lord Atkinson—I concur.

Lord Shaw—When a name truly descriptive of an article has always been associated with the particular name of the manufacturer, then a monopoly of the name of the article, apart from the name of the manufacturer, is almost impossible to acquire.

With that observation I entirely concur with the judgments of your Lordships and with the Courts below.

Lord Sumner—I concur.

Their Lordships dismissed the appeal.

Counsel:

Counsel for the Appellants— Walter, K.C.— Sebastian— Whitehead. Agents— Alpe & Ward, Solicitors.

Counsel for the Respondent— Kerly, K.C.— Gover. Agents— Mills & Morley, Solicitors.
1916

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