Jones v Gedye [1909] HCA 65; (1909) 9 CLR 262 (11 October 1909)

HIGH COURT OF AUSTRALIA

Jones Informant, Appellant; and Gedye Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

11 October 1909

Griffith C.J., O'Connor and Isaacs JJ.

Bryant, for the informant,

Griffith C.J.

No doubt a very important question of law may be raised upon the construction of sec. 87 of the Trade Marks Act 1905, when the facts are such as to form a basis for argument. In this case the only question that arises is whether upon the particular evidence the magistrate was entitled to find that the defendant had no intent to defraud. Upon the evidence the magistrate might have come to the conclusion that nobody was likely to be deceived into believing that the lemonade sold by the defendant was manufactured by E. Rowlands Proprietary Ltd. He might have found that the circumstances of the district in which the defendant carried on business were such that persons buying lemonade from him, though it was in bottles bearing the trade mark of that company, would understand that it was lemonade manufactured by the defendant. If the magistrate came to the conclusion that those were the facts, he might find that the defendant had acted without intent to defraud. The expression "intent to defraud" in the section means intent to induce purchasers to believe that the goods which they are purchasing, and which are manufactured by the defendant, have been manufactured by somebody else. Upon the evidence the magistrate might properly come to the conclusion that no such intention existed. From any point of view, it is merely a question of fact, and this Court never grants leave to appeal upon mere questions of fact.

Per curiam. Leave will be refused.

Special leave to appeal refused.

Solicitors, Westley & Dale.