C. A. 1902 HAN for what he actually received, or must be presumed to have received, or ought to have received, but no more: AttorneyMCCLENAG- General v. Alford (1855), 4 DeG, M. & G. 841, 851; Vyse v. Foster (1872), L.R. 8 Ch. 309, 333, (1874), L.R. 7 H.L. 318; Ex p. Ogle (1873), L.R. 8 Ch. 711, 716. The Master has charged him with all the losses to the estate resulting from his neglects and defaults, and has allowed him a compensation of $100 per annum from the Hinton estate, which seems a moderate v. PERKINS. Maclennan, sum. It follows that the executor's appeals in respect of his compensation should be allowed as to both estates, and it will be referred back to the Master to fix a proper amount in the MacGillivray estate. The appeal will be allowed with costs. Moss, and GARROW, JJ.A., concurred. G. F. H. [IN THE COURT OF APPEAL.] THE GRAND HOTEL COMPANY OF CALEDONIA, LIMITED, V. THE SAME COMPANY V. Trade Mark-Infringement of" Caledonia Water"-Caledonia Mineral Water 66 The plaintiffs for many years had been the owners of mineral springs in the township of Caledonia, the waters of which they had caused to be registered under certain trade marks, and the names 'Caledonia Water" and "Caledonia Mineral Water." The water, which was used medicinally and as a beverage had, through the plaintiffs' exertions and the expenditure of large sums of money, become very widely known as water from Caledonia springs. Around the springs a village, laid out on the ground many years ago, came into existence, and some years ago the plaintiffs erected a hotel, and procured a railway station and post office to be located there under the name "Caledonia Springs." In 1898 L. & Co., who had purchased a lot about a quarter of a mile from the plaintiffs' place, had, by sinking an artesian well, tapped springs, from which water flowed similar in some respects to the plaintiffs', which they supplied in barrels to their agents as "water from the new springs at Caledonia," which these agents bottled and sold. The bottles used were similar in shape and size to the plaintiffs. One of the agents, T. & Co., had, at the time of the commencement of the action, been using labels thereon resembling the plaintiffs', and selling the water as Caledonia water, but this had never been sanctioned by L. & Co., and was at once abandoned. Held, Moss, C.J.O., dissenting, that the defendants could not be restrained from using the word "Caledonia" as they did in designating the water sold by them, and that the injunction granted herein should be dissolved with costs, except as to T. & Co. THESE were appeals by the defendants from the judgment of Boyd, C., reported in 2 O.L.R. 322, where the facts are set out. On November 21st and 22nd, 1901, the appeals were argued before ARMOUR, C.J.O., OSLER, MACLENNAN, Moss, and LISTER, JJ.A., when judgment was reserved. J. J. Maclaren, K.C., and W. E. Middleton, for the appellants. dents. C. A. 1902 Dec. 4. C. A. 1902 GRAND HOTEL CO. v. WILSON. In consequence of the death of LISTER, J.A., and the appointment of ARMOUR, C.J.O., to the Supreme Court of Canada, the case was directed to be re-argued. On December 4th, 1902, before Moss, C.J.O., OSLER, and MACLENNAN, JJ.A., the appeals were re-argued. W. E. Middleton, for the appellants. F. Arnoldi, K.C., for the respondents. December 4. Moss, C.J.O.:-I am of opinion that the judgment appealed from should be affirmed. I see no good reason for interfering with the learned Chancellor's conclusions of fact, which are, I think, well supported by the testimony. Many years before the defendants began the production or sale of mineral waters from the neighbourhood of the plaintiffs' springs in the township of Caledonia, the waters derived from the plaintiffs' springs had gained a reputation and acquired an established market as "Caledonia Water," not because they were so named by the early proprietors, but because they grew into favour and came to be known to dealers and consumers by that name. The name gradually became attached to and connected with the plaintiffs' waters, and was understood to designate those which the proprietors of the springs supplied to their customers. This had become so complete and certain before the defendants put any water on the market that anyone hearing the term "Caledonia Water" would instantly conclude that it referred to the plaintiffs' waters. All this was well known to the defendants when they began making their arrangements for bringing their water before the public and placing it in the market. The question seems to me to be largely, if not altogether, one of fact, whether the defendants have so dealt with their waters as to lead consumers to the belief that they were selling the plaintiffs' waters, which were well known to the trade and general public as "Caledonia Water." The only distinction between such cases as Wotherspoon v. Currie (1872), L. R. 5 H.L. 508; Montgomery v. Thompson, [1891] A.C. 217; and Reddaway v. Banham, [1896] A.C. 199, C. A. 1902 GRAND HOTEL CO. v. WILSON. and this case, that can be suggested, is that they related to manufactured articles, whereas this case relates to a natural product. No such distinction appears to have been recognized in Radde v. Norman (1872), L.R. 14 Eq. 348, or Appolinaris Co. (Limited) v. Norrish (1875), 33 L.T.N.S. 242, in both of which Wotherspoon v. Currie was relied upon for the plaintiffs. Moss, J.A. The plaintiffs' waters are not natural products from sources available to all the world, nor found in many places within a certain district. The defendants claim that their waters are different from the plaintiffs in chemical ingredients, and not only different but superior on account of the differences. For all that appears, the plaintiffs have the exclusive access to the sources whence are derived waters possessed of the qualities they claim for theirs. And I see no good reason why the principle of the above mentioned cases should not apply to this case. It is peculiar and special in its facts and circumstances, and may well be classed with them. The defendants contend that, even admitting that the plaintiffs have shewn themselves entitled to the use of the words "Caledonia Water," as designating their waters, the use by the defendants of the words, "water from the new springs at Caledonia," clearly distinguishes their waters from the plaintiffs' waters. I am unable to adopt that view. In the designation of the plaintiffs' waters, "Caledonia" is the dominating factor-the word which conveys to the consumer the idea of the waters supplied by the plaintiffs. And the question of the particular springs whence they are derived would scarcely present itself to his mind. To say that the waters are from the new springs at Caledonia is not to inform him that they are not the plaintiffs' waters. Unless he has special information as to the history of the plaintiffs' springs he will not see any distinguishing mark in the mention of the new springs, which may well suggest, or be taken to indicate, new springs of the plaintiffs' waters. The words convey the idea of Caledonia waters, and suggest the well-known waters supplied by the plaintiffs. C. A. 1902 GRAND HOTEL CO. v. WILSON. Moss, J.A. It is not easy to explain why the defendants use the words "at Caledonia," unless for the purpose of gaining the advantage to be derived from the reputation of the plaintiffs' waters. The defendants' waters could just as well have been put on the market-and if they have intrinsic merit, gain popular favour -under some other name. Being, as they are, chemically different from any of the plaintiffs' waters, the word "Caledonia" suggests no special attribute or quality common to the waters from the township or locality. And, so far as the defendants' waters are concerned, there is nothing in the name "Caledonia" except an advantage from the reputation of the plaintiffs' Caledonia waters. It is argued that the words "Caledonia Water" mean nothing more than waters obtained in the township of Caledonia, and that any person having mineral waters obtained at or in that township is entitled to use the word "Caledonia" in designating them. But that argument does not hold in view of the secondary meaning to be attached in this case to the words as denoting the plaintiffs' waters. Where the secondary meaning has been acquired, the defendants cannot justify themselves by the statement that they are telling the simple truth. In Reddaway v. Banham, supra, Lord Herschell thus dealt with the argument, at p. 212: "I think the fallacy lies in overlooking the fact that a word may acquire in a trade a secondary signification differing from its primary one, and that if it is used to persons in the trade who will understand it and be known and intended to understand it in its secondary sense, it will none the less be a falsehood that in its primary sense it may be true.” In the same case Lord Macnaghten said, at p. 219: "I venture to think that a statement which is literally true, but which is intended to convey a false impression, has something of a faulty ring about it." To my mind the words employed by the defendants to designate their waters, so far from clearly distinguishing them from the plaintiffs' product, appear calculated to mislead and to induce the public to suppose that what the defendants are vending comes from the plaintiffs' springs. |