Vol. XXI., No. 11.] AND TRADE MARK CASES.

217

Itt the Matter of Burroughs, Wellcome &os:« Trade Maf'ks,

and
J.n the 'Matter of the Patents, Designs, and Trade Marks Acts, 1883 -to 1888.

IN THE COURT OF ApPEAL.

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BejoreLoRDS JUSTICES VAUGHAN WILLIAMS, STIRLING, and COZENS-HARDY.

March 25th, 28th, ·and 29th, 1904.

IN THE MATTER OF BURROUGHS, WELLCOME & CO.'S TRADE MARKS,

and

IN THE MATTER OF THE PATENTS, DESIGNS, AND TRADE

MARKS ACTS, 1883 to 1888.

Trade Mark.-Fancy word.---Motion to expunge Trade Marks from the

Register.-Motiondismissed.-Appeal dismissed.-Patents, Designs, and Trade
10 .i.lfarks Act, 188:3, section 64, subsection 1 (c).
In and previously to the rnonth of ..March 1884 B. W. & 00. ioere
manufacturing and selling compressed drugs in a solid form and of a
lent.icttlar or bi-convex shape. In 1884 B. W. & 00. registered the word
"Tabloid" in Classes :3 and 42, and in 1885, in the same classes, a device
15 consistinq 01 a frame with the word " Tabloids" inside. They had previously
'registered and used the word " Tablet" for the same goods. H. S. W. (who was
the surviving partner of the firm of and traded as B. W. & Co.) inuented the word
., Tabloid." B. W. & 00. commenced asi action against T. and O. cOlnplaining of
their selling goods not of the Plaintitfs' manufacture in response to orders and
20 prescriptions for drugs under the designation of" Tabloids," or " Tabloids-
"B. & W.," or "Tabloids-Burroughs, Wellcome & Co.," preceded or followed
by the .name of the particular drugs required. The Defendants denied any
passing off, and, as to the Trade Marks, moved to expunge them from
the Regil!ter on the grou1~d that" Tabloid" was not a fancy word; that it
25 uias descriptive; that. it was used by B. W. & 00. in 1884 and onwards to
denote the various articles so sold; and, further, that it had not acquired an
exctusive meaning as denoting the goods of B. W. ~ 00., but, on tite contrary,
had acquired a meaninq connoting any compressed medicine made up in a bi-
convex or similar shape, and denoted as well the goods ofother manufacturers
30 as those of B. W. ~ Co. The Plaintiffs' contention was that" Tabloid" and
" Tabloids" were fancy words and that' they meant excl1!sively the good~ of
B. W. & Co. It was held at .the trial that "Tabloid" was a fancy word as
applied to the goods101" which it was registered, and that. the Motion to rectify
S
 218 REPORTS OF PATENT, DESIGN, [April 27 t 1~\i4.

Ih the Matter oj Burroughs, Wellcome &; cs:« Trade Marks,

and
.l.n the Matter of the Patents, Designs, and Trade Marks Acts, 1883 to 1888.

failed and must be dismissed , and that the Plaintiffs had made out their case
a nd uiere entitled to an injunction to restrain the Defendants from using the
ioord " Tabloid" or " Tabloids" so as to pass off goods not manufactured by the
Plaintiffs as or for the goods of the Plaintiffs. The Defendants appealed from
the jtwgment 80 far as it dismissed their Motion. 5

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Held, by the Court of Appeal, that" Tabloid." was at the date of registration
not descriptive, and was a distinctive fancy word not in common use. The
appeal was dismissed u'ith costs.
TVhen it is sought to remove from the Register a mark iohicb. has been long
registered on grounds depending on the proof of facts exist1'ng at the date of 10
registration, the Court will give the registered owner the benefit of any doubt,
Chesebrough Manufacturing Company's Trade Mark, 19 R.P.C. 342 ; L.R. (1902)
2 Ch.lfollowed.
H. S. Welleolne, a manufacturing chemist, the surviving partner of the firm of
and who traded as Burrouqhs, Wellcome &; 00., on the 17th of January 1903 15
commenced an .action against Thompson and Capper, who were chemists
c.irrying on business at Manchester and elsewhere. The Plaintiff claimed--
(l) an injunction to restrain the Defendants, their servants and agents, from in any
manner passing off, or attempting to pass off, any preparation not of the manu-
facture of the Plaintiff as or for a preparation of the Plaintiff; (2) and frOID 20
selling or offering, or exposing or advertising for sale, or procuring to be sold,
any such preparation as aforesaid under the name of "Tabloid" or " 'I'abloids,"
or "Tabloid B. W. & Co." or "Burroughs, Wellcome & Co.'s Tabloids," or
under any other name which by reason of colourable imitation thereof or
otherwise was calculated to represent or lead to the belief that such preparation 25
was a preparation of the Plaintirf : (3) and from selling or supplying any such
preparation in response to orders for" Tabloid" products or a preparation of
Burroughs, Wellcome & Co.; (4) and from in any manner infringing the
Plaintiff's registered Trade Marks Nos. 36,154, 36,155, 42,378, 4t,379, 225,812,
225,813, 225,814, :!45,815, and 225,816, or any of them; (5) an Order for delivery 30
up, &c. ; (6) damages, or an account of profits; and (7) costs.
By his Statement of Claim the Plaintiff stated that his was an old-established
and extensive business, and that (2) in the sear 1884, or prior thereto, he was
desirous of inventing and adopting a new and distinctive Trade Mark and trade
designation for goods of his which should effectively distinguish them from 35
the goods of all others engaged in a similar business, and to this end he invented
and adopted as his Trade Mark and trade name the ,vord" Tabloid," which had
never existed before and was absolutely new and unknown. (3) On or about
the 14th of March 1884 he applied for and in due course obtained, in the name
of his firm, the registration as of that date of the word" Tabloid" as his Trade 40
:Mark No. 36,154 in Class 3 in respect of chemical substances used in medicine
and pharmacy. He further subsequently, on or about the 27th of January 1885,
applied .for and in dne course' obtained similar registration as of the last men-
tioned date of the word "Tabloids "<in a frame as his Trade Mark No. 42,378 in
respect of the same goods in Class 3. Both the registrations had been duly 45
renewed and were standing in the name of the Plaintiff. '(4) On or about the
14th of March 1884 he applied for and in due course obtained, in the name of
the firm, the registration as of that date of the word "'Tabloid" as his Trade
Mark No. 36,]53 'in Class 42 in respect of preparations of food for human use.
He further subsequently, on or about the 27th of January 1885, applied for and ~O
 Vol. XXI., No.1l.] AND TRADE MARK CASES. 219

In the Matter of Burroughs, 'Wellcome lh Co.'s Trade Marks,

and .
In the Matter of the Patents, Designs, and Trade Marks Acts, 1883 to 1888.

in due course obtained similar registration as of the last mentioned date of the
word "Tabloids" in a frame as his TradeMark No. 42,379 in respect of the
same goods in Class 42. Both the registrations had been duly renewed and
were standing in his name. (5) At or about the date of the first registration he
5 began to use, and had ever since used, the word "Tabloid" as his distinctive
Trade Mark in respect of a very great variety of goods of his manufacture.

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Such user had been on an enormous scale within the United Kingdom, and had
been both on the bottles and receptacles in which the goods were sold, and also
in numberless advertisements and other documents circulated among the trade,
10 the medical profession, and the public, for the purpose of advertising and
popnlarising his goods. In addition to the British trade the mark had also
been used most extensively in connection with goods exported by him to all
parts of the world. (6) By reason of such user' and of the novelty and dis-
tinctiveness of the Trade Mark and trade name, and of the very great expendi-
15 ture of the Plaintiff in advertising and making it known, the same had become
and was very familiar to the trade and the medical profession and also to the
public as indicating exclusively that any preparation to which it was applied or
in respect or which it was used was a preparation of the Plaintiff's, and anyone
who ordered or asked for any preparation by that name intended and expected
20 to receive a preparation of a, particular make-i.e., the Plaintiff's make and no
other. (7) The Defendants carried on business as chemists in Manchester at
two shops, No. 51, Piccadilly, and No. 39, Deansgate, respectively, and were in
the habit of supplying preparations not being the Plaintiff's preparations in
. response to orders for "Tabloids" or" Tabloid" preparations, even when the
25 name Burroughs, Wellcome & Co. or" B. W. & 00." was expressly mentioned.
Amongst the Particulars given were the following :-(1) a verbal order for
"Burroughs, Wellcome & Co.'s Cascara Sagrada Tabloids" ; (2) a written order
for ,. Tabloid Potassi Chlorate-B. W. & 00."; and (3) a written order for
'" Cascara Sagrada Tabloids-B. W. & Co." ; and nine other orders, written and
30 verbal, for" Tabloids" of various kinds. (8) The goods supplied in response
to such orders were in no single instance the Plaintiff's goods, and the Defen-
dants were deliberately and knowingly selling other preparations in place of
the Plaintiff's preparations and in response to orders for the Plaintiff's prepara-
tions, and were thereby representing that they were in fact the Plaintiff's
35 preparations, and were by so doing deceiving the public and injuring the
Plaintiff, and unless they were restrained by the Order and injunction of the
Court from continuing so to do they would still further deceive the public and
injure the Plaintiff. The Plaintiff claimed the relief stated above.
By their Defence the Defendants stated that-(l) the word" Tabloid" was
40 not anew word or an invented word, but was merely the word" Table" with
the common suffix "oid." The word was not distinctive of the Plaintiff's
goods, but was a word commonly used in the medical and pharmaceutical pro-
fessions and in ordinary literature to indicate shape or form; (2) they admitted
the registrations set out in paragraphs 3 and 4 of the Statement of Claim. Such
45 registrations were improperly made, and the Defendants were moving to rectify
the Register by removing such marks therefrom. The Defendants had not
Infringed such Trade Marks or any of them; (3) they admitted that the Plaintiff
had largely used the word as a descriptive word upon and in connection with
medical preparations put up in tabloid form. Save as in the Defence admitted
50 the Defendants denied that the said word had been used by. the Plaintiffs;
(4) they denied all the matters alleged in paragraph 6 of the Statement of Claim;
(5) save as to the sales referred to in paragraph 7 of the Statement of Claim to
W .. H. Sykes, to W. B. Davies. and to T. Smith, the Defendants had no
i knowledge of the Eales referred to in such paragraph, but as they claimed the
~~ :right to sell medical preparations in tabloid form under their ordinary description
S 2
 220 REPORTS OF PATENT, DESIGN, [April·27, 1904.

In the .]£att~r of Burrouqhs, Wellcome &; oc» Trade Marks,

. and
In the Matter of the Patents, Designs,and Trade Marks Acts, 1883 to 188~t

of. ,,'Tabloids,"· they were prepared for the purposes of the action to admit
the' sales referred to in such paragraph other than the sales toSy~es, Davies,
arid Srnith ; (6) they did not supply to Sykes, Davies, or Smith any goods not of
themanufacture of the Plaintiff as .and for the goods of the Plaintiff. As to
Sykes and Davies, both such.purchasers were in terms informed by the Defen- a
dants' salesman that the goods supplied to them were not the goods of the

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Plaintiff but the goods of the Defendants. As to Smith, the order was not in
writing, but was given verbally, and DO mention was made by Smith that the
goods of the Plaintiff were required, nor was any written order given for such
goods; (7) they admitted that the word" Tabloid" coupled with the letters 10
" B. 1N.& Co." and the name" Burroughs, Wellcome &- Co." meant goods of
the Plaintiffand no others. They had not supplied, aud were not in the habit
of supplying, any goods other than ,the goods of the Plaintiff under orders in
which the word" Tabloid " was coupled with such letters or name; and they
were and always had been ready to give any undertaking not to sell under 15
ordersso given any goods other than those of the Plaintiff. No notice of any
such claim, or any notice at all, had been given to the Defendants prior to the
issue of the writ in the action; (8) they denied each and every of the facts
alleged in paragraph 8 of the Statement of Claim; (9) save as specifically or
impliedly admitted they denied each and every of the allegations in· the %0
Statement of Claim as if the same had been specifically denied.
The Defendants gave notice of a Motion to rectify the Register by expunging
the Plaintiff's trade marks; and the Particulars of Objections upon which
they relied in support of their Motion were as follows :-" (A) As to all the
" Trade Marks-(a) the word 'Tabloid' is not an invented word; (h) the 25
" word ' Tabloid' has reference to· the character and quality of the goods to
" which it is applied; (c) the word' Tabloid' does not consist of or contain
" any of the essential particulars specified in section 64 of the Patents, Designs,
" andT'rade 'Marks 'Act, 1883; (d) the word' Tabloid' was prior to the date of
"the registration of the marks the word commonly and generally used to 30
" describe small tablets or pilules, (B) As to Trade Marks Nos. 42,378 and
".~2,379-(a) the marks were registered without any disclaimer under
",section 74 of the Patents, Designs, and Trade Marks Acts of the word
" 'Tabloid.' And the Applicants claim that such .marks should be removed,
" or; alternatively, that the Register should be rectified by the addition to the 35
"Register ofa disclaimer of any right to the exclusive use of the word
" , Tabloid'; (b) the marks are not used by the Respondents"; (c) the
Objections set out in paragraph (A). (C) As to the Trade Marks Nos. 225,812,
~~5,813, 225,814, 225,815, and 225,816-(a) the Objections set out under para-
graph.(A) ; (b) none of such marks have been used upon any of the goods in 40
Classes 1, 2, 39, 44, or 48, in respect of which the mark has been registered.
. The Action. and Motion were tried together, judgment heing given ·on the
14th of December 1~03 by Byrne, J., who decided that" Tabloid" was a fancy
word as applied to the goods for which it was registered,and that the Motion
failed; an injunction was granted in the action (ante, p. 69). 45
The Applicants on the Motion to rectify appealed from that part of the
judgment dismissing the Motion.
Walter and Gray for the Appellants.-This is an appeal from Byrne, J., on
a Motion to rectify the Register. The first two marks are the word " Tabloid,"
registered in Classes 3 and 42, and the next two marks are the word" Tabloids" 50
within a device consisting of a frame. The marks were registered under the
Act of 1883. An attempt was made to crave in aid of the Act of 1~88, but under
section 27 of the Act of 18H8 these marks were subject to the liability of. being
removed under section 90 of the Act of 1883; and the Motion is for rectification
by "per~ons aggrieved" on the ground that the word could not be registered ~~
 Vol. XXI., No. 11.] AND TRADE MARK CASES. 221

In the Matter of Burrouphs, Weucome &; Co.'s Trade Marks,

and
In. the Matter of the Patents, Designs, and Trade Marks Acts, 1883 to 1888.

under section 64 of the Act of 1883. "Invented words " were only introduced by
the Act of 18R8. [Section 64 (1) (c) of the Act of 1883 was read.] It was held
by Byrne, J., that the words" Tabloid" and" Tabloids" were distinctive fancy
words not in common use. We submit that this was wrong. It was held unde-r
5 the Act of 188a that no words came within the Act which had reference to the
character or quality of the goods. [Section 64, as amended by the Act of 1888.

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was read.] In the" Solio" case it was held that (d) and (e) are tobe read
disjunctively, It was proved in the present case that beforeregist.ration
Mr. Wellcome had used and registered the word "Tablet" to describe doses of
10 medicine put up in compressed form, and he wanted a more euphonious word,
and invented, as be said, "Tabloid." He had also used "Ovoid'" for other
articles. The word " Tabloid" was used' as early as 1885, but bhere iwas no
reference to the mark in advertisements until 1888. It is important to see how
the mark was at first used. The first user was "Tabloids of," &c., 'on the
15 goods. Next, in 1888, "Tabloids" was printed in inverted commas; then
"Trade Mark" in, small letters was added;' in 1896 "Tabloid System'~
appeared. [The Respondents' advertisements were referred to.] All the'
above were used in the advertisements; also ".Tabloid Brand" and "Tabloid
Products." These users were to describe articles', not dlstinctively, but
20 to describe tablets. It was a new word for the same article-compressed
bi-convex drugs. "rfablet" was dropped in 1888 or 1889, but the words
were from 1885 to 1888 used interchangeably for the same article.
U Tabloid" was a word full of meaning, and the 'dictionaries show:
what everyone took it to mean. We refer to the literature on the subject.
25 [Neville, K.C.-The word had never been used before reglstration, and 1
submit that any literature subsequent to the date of registration is:
irrelevant.] 'I'he termination ~'oid" has the meaning of "like."
[VAUGHAN WILLIAMS, L.J.-It excludes the thing that it is like; as 'In
anthropoid.] So" Tabloid" is like a tabula. [The following' works were also
30 referred to :-The Practitioner, article on "Tablet Trtturations " ; the Century
Dictionary of 1889 ; Foster's Encyclopredic Medical Dictionary of 1892 ; Cassell's
Encyclopoodic Dictionary; Chamber's Twentieth Century Dictionary, 1901;
Standard Dictionary, 1895; Encyclopredia Britannica; Dr. FiJster's. Reference
Book of Practical Therapeutics; and Latin Grammar of Pharmacy.] 'I'his
35 literature shows the meaning of the word in general use, 'I'he dictionaries
refer to the word as "Table" plus" oid," and give the same meaning of, it..
Some have recently added, "used as a trade mark" at the instance of the
Respondents, but they keep the derivation and meaning, and the addition has
no effect. 'I'he evidence of the witnesses shows that when they first met the
40 word they all thought it was formed from "Table" and -" old," and 'gave
the meaning to it accordingly. We rely on Van Duzer's TradeBiark. and
Leafs Trade Mark (4R.P.C. 31 ; L.R. 34 cu. D. 62;\); applying the tests
there laid down-Is tabloid fanciful in its application to the article to
which it is applied? One has to know the article to which the word is
45 proposed to be applied. Knowing this anyone would say the word meant like
or having the form of a table or tablet. The word suggests descriptiveness.
[COZENS-HARDY, L.J.-What would it suggest with regard to malt, for
instance?] It has never been used for that, and the registration might be
limited. The law as laid down in Van Dueer's Trade Mark has never been
50 departed from. Then there is Re Trade Mark Bovril (l3 R.P.C. 382; ]~.R. (1896)
2 Oh, 600). Applying the test there laid down, "Tabloid "did at the date of its
registration describe the goods. "Tabloid," if it had no definite meaning, at all
events suggested one. A word to be a fancy word must he nou-descriptive and
meaningless as applied to the goods. The actual word in this case differs from
55 " Bovril " because" oid " is a well-known termination. Even as an invented
 REPORTS OF PATEN'l\ DESiGN, [Apri] 27, 1904.
In the Matter of Burrouqhs, Wellcome &; co» Trctde Marks,
atui '
In the Malter of the Patents, Desiqns, and T1"ade ~7J:[arks Act~~, 1883 to 1888.

word under the Act of 1888 ., Tabloid" would not stand the tests laid down in
the" Solio" case (Eastman:« Photoqraphic Materials Company's Application,
15 R.P.C. 476; L.I{. (1898) App.Cas, 571). "Tabloid," although anew word, was
not an invented word within the meaning of the Act. [COZENS.. HARDY,
L.J.-I do not think it is enough that it was never seen before-e.g., "Uneeda" 5
'vas invented in that sense.] " Tabloid" is made by merely adding a suffix to

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an ordinary English word. [VAUGHAN WILLIAMS, L.J.-How would Lord
Herschell have dealt with "Satinine" as an invented word P] He would have
struck it out. [The passage from Lord Herscliell's judgment referring to
"Satinine" was read.] [V~UGHAN WILLIAMR, L ..J.-l gather that if he had 10
arrived at the conclusion that" Satinine" was an invented word, then, unless-
there was some other reason for it not being an invented word, he would
have held that it was an invented word, notwithstanding that it was "Satin"
plus a termination.] Resays, "if the word be an invented word t": it was.
not before him to consider Whether it was. [VAUGHAN WILLIAMS, L.J.- 15
It may be that the word" Satinine " was objectionable on other grounds-e-that
iB.~O Bay, that he did not think that Lord Justice Kay's objection to it, that it
did not involve much invention, was a good one.] I do not suggest that the
quantum of merit has to be considered, but Lord Herschell is not expressing
any approval of "Satinine." [VAUGHAN WILLIAMS, L.J., referred to Lord 20
Herschell's judgment as to a Trade Mark not being registered as a reward of
merit, and added: Although you may say that the word is compounded of
familiar parts, this word deprives no one of any right.] It prevents the proper
development of the English language; a mere variation of the orthography or
termination of a word does not make an invented word. It cannot be that any 25
word not ·previously used, however made, is an invented word. " Tabloid"
trespasses against all the judgments in the " Solio " case. There is no invention in
merely altering the termination of a word. [V AUGHAN ,\\TILLIAMS, L.J.-What
would you say to " Pastiloid " for Iozenges P] It would be bad. "Electroid" has
been held to be bad (Hannah's Trade .J.lJ.a1"k, 7·· R.P.C. 46) ; that was a new 30
word. [VAUGHAN WILLIAMS, L.J.-Is there any purely English word in
which" oid" has been used as a suffix?] "Crystalloid" is of Greek origin.
" Table" is of Latin origin. [VAUGHAN WILLIAMS, L.J.-Are there any words
of Latin origin ending in "oid"?] Yes, fungoid and ovoid. Zincoid is in a
dictionary, and is made from an English word. " Bavonol " has been held to be a 35
good invented word (J. O. and J. Field, Ld. v, TVagel Syndicate, Ld., 17 R.P.C.A
266), but it was held to have no meaning. In .J.lfeaby & 00., Ld. v. Triticine, Ld.
(15 R.P.C. 1), "Triticumina " was held not to be a fancy word. A fancy word
has no meaning. The use and advertisements of tabloid show that it was
descriptive, and "Tabloids" in itself shows that "Tabloid" had. a meaning ; 40
" Tabloids" was used on a box of bi-convex articles as descriptive of them.
The Respondents themselves.dedicated the word to the public as a descriptive
word. In Grosemith'» Trade .J.l!lark (6 R.P.C. 180), " Emollio " was held "not to
be a fancy word. [VAUGHAN WILLIAMS, L.J.-Is it not, as North, J., puts
it, not whether the words are capable of a meaning, but whether they, as used, 45
were intended to describe a quality?] Here the first user shows the descriptive
meaning of "Tabloid." Linoleum 1JIanujacturing Oompansj v, Nairn (L.R. 7
C.D. 834) was not a case of registered Trade Mark, but on this point the
principle is the same. When the Trade Marks were first registered the Respon-
dents used "Tabloid "<descriptively, and it cannot have been distinctive at any 50
time, The word has passed into the language, and is used in current literature•..
[~everalinsta:Q.ces were quoted.] T)1e Appellants had never used the word on
goods, but what was complained of in the action against. them was that they
had supplied tablets in response to written orders for" Tabloids." There is no
difference in. meaning between" Tablet" and "Tabloid." It is submitted that 55
 \10 1. XXI., N(). 11.1 AND TRADE MARK CASES. 223

In the Matter of Burrouqhs, Wellcome th Oo.'s Trade Marks,

and
In the Mcttler oj the Patents, Designs, and Trade Mark» Acts, 1883 to 1888.

the word "Tabloid" is not distinoti ve and isnot a fancy ·word. "Distinctive"
governs everything in section 64 (1) (c). "Distinctive" means indicating
goods of a particular person (Kerly on Trade Marks, 2nd edition, page 132).
[VAUGHAN 'VILLIA1\'1S, L.J.-Shollid not the Trade Mark Acts be construed so
5 far as possible to prevent fraud?J But people ought not, in the words. of
.Fry, L.J., be allowed to appropriate parts of the open common of the English

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language. The word" Tabloid" must be considered as a whole and its meaning,
when invented, to the ordinary intelligent members of the public with know-
ledge of what it is to be applied to. Under the Act the true test is whether,
10 knowing the article, the word has a descriptive meaning or whether it suggests
one ; as examples of the rule, new words formed merely by adding suffixes to
ordinary words are not distinctive fancy words, In the" Bovril " case the Lords
Justices directed themselves as-jurors on the principle of the" Melrose " case.
.[The judgment of Byrne, J., was read.] One has to take the word" Tabloid "
15 in connection with goods of the kind for which it was used, i.e., medicine ill
tablet form, and with the knowledge of the use of "Tablet." The question is
whether the word was obviously non-descriptive of the goods to which it was
applied. The evidence as to, the origin of the word is important. The
intention of the inventor of a word is not conclusive, but it is material.
20 [VAUGHAN .WILLIAMS, L.J.-A fancy word is not generally, chosen hap-
hazard. ,The mere fact that the train of thought in the inventor's mind can be
traced back is not fatal to the word. The fact that the characteristics of the
article may have suggested the word does' not make it .bad ; what does
make it bad is that the name should describe a characteristic of the
25 article.] By reason of what had taken place before,' the word was aptly
descriptive of the article, and Mr. Wellcome knew this. Just as "ovoid"
was formed from ouum, Mr. Wellcome made "Tabloid" from tablet, meaning
of the shape of a tablet. 'I'he use of the suffix" oid " was well known in 1881.
If a literary man 'V:.l.S asked in 188! to coin a word to aptly describe something
30 of the form of a tablet, he could not have made a more apt word.. [VAUGHAN
WILLIAMS, L.J.-A literary man who did not happen to be a scholar.]
" Tablet" means a little table-. [VAUGHAN WILLIAMS, L.J.-Then in making
" Tabloid " you leave out all that makes the diminutive.] No word has been
upheld as a Trade Mark in which every syllable has a meaning; if "'rrabloid "
35 is good, any word ending in " oid " is good. III 1884 anyone seeing" Tabloid"
would associate it with" Tablet," which the Respondents had used to describe
compressed drugs. The word would suggest not table, but compressed drugs
known as tablets, and tabloid is formed similarly to ovoid, fungoid, and so 011.
The dictionaries at once attached a meaning to the word and included it.
40 Moulton, K.C., .and Neville, K.C., for the Respondents.-The first principle
applicable here is that the question of the propriety of the registration must be
judged as at: the date of registration, namely 1884. No subsequent matters can
affect .the question. A mark rightly registered call only be destroyed by the
behaviour of the owner. 'rhus the use of the word in literature in the passages
45 quoted is immaterial.' [VAUGHAN WILLIAMS, L.J.--It is not contended that
we must not take the date of registratlon.] Secondly, it is no objection to a,
mark that it Isnot used on all the traders' goods, and, if used on some only, the
word comes to. denote the particular goods as well as the trader; thus "Kodak"
got to denote the goods and then got to be used as a verb, but never to denote
50 goods which did not come from the Eastman Oompans], It is a fallacy to -say that
the: word must not describe the goods as well as the origin; it would be different
if the owner had applied the mark to goods of other traders. "Vaseline " was
unquestionably applied to denote petroleum jelly that came from the Cheeebroupb
Company. "Tabloid" has never meant anything except the Respondents' goods.
55 Dictionaries have been quoted against us. [COZENS-HARDY, L.J.-rhat did
 221 REPORTti OF PATENT, DESIGN, [April 27", l~Ul.

In the Matter of B'l.//rroughs, Wellcome & Co.'s Trade Marks,

~ and
. atter of the Patents, Designs, and Trade J.l!larks ACt8, 1883 to 1888.
In the . Y

not impress me.] [VAUGHAN WILLIAMS,L.J.--!t made no impression on me.]

The real issue is whether in 1884 the word was a distinctive fancy word not
in common use. It had never been used, so it was not of course in common
use. And by adoption by the Respondents it could be made a distinctive
word, for it was not a mere descriptive word. [COZENS..HARDY, L.J., referred 5
to " Uneeda."] That was a mere mis-spelling. In 1884 people would not know

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the meaning of "Tabloid" ,; it was a fancy word, and could be made
distinctive. As to whether .the word was a "fancy word "-the history of
the law must be kept in mind, An extended meaning was formerly
given to the judgments in ["an Duzer's case. [VAUGHAN WILLIAMS, L.J.- lU
No one says 110W, as was said in that case, that a "fancy word" must be
absolutely meaningless.] Until the" Bovril " case that was supposedto be the
effect of Van Durer's case, the considerations are different when one is not
dealing, as in Van Dueer's case, with an existing word. [COZRNS.HARDY, L ..J,
-The mere fact that the word is new is not enough, is it?] The fact that the 15
word is new and has no meaning is sufficient. [COZENS-HARDY, L.J.---Does not
,your argument involve that North, J., was wrong in the" 'I'riticumina" case P]
That word would be registered since .the " Solio " case, and so would" Emollio."
'I'he test of a, new fancy word is whether it had a meaning to ordinary people.
[COZENS-HARDY, L.J., referred to the R.espondents' use of the words" Tabloids 20'
" of" at or about the time of registration.] That referred to the Respondents'
goods, and not those of other traders; it is not a descriptive user, but
always of their goods. [COZENS-HARDY, L.J.-Does not the user at
or immediately after registration throw a light on the meaning of the
word as originally registered P] There is no objection to using a mark 25
descriptively of the goods of the owner. In considering whether "Tabloid"
was a fancy word in 1884, it is difficult to put aside the familiarity
with it since gained, but this should be done; moreover, the long user by the
Respondents to denote their goods should be considered as in the" Vaseline" case. «:
What could" Tabloid" mean in 1884? There is 110 English word formed by 30
adding " oid " to an English word. The Respondents registered also "Valloid " -
what does that mean? It was suggested that "Bolio" had a meaning, but the
House of Lords asked-What does it mean? The use of "Tablet" for the
article helps the Respondents, anyone can go on using it; but "Tabloid" was
I submit, a fancy word, and has no meaning in itself. The registration hurts n~ 35
one, and the word was in fact invented by Mr. Wellcome. [The judgment of
Lindley, L.J., in Re Trade Mark Bovr1:l (13 R.P.C. 382) was referred to.] If the
".fancy" is to ~e.got. fro~ the application, it ~ust be obviously non.descrip-
tive : but a distinction IS made between ordinary words and new words.
" Somatose " is now registered. The termination" ose " of "80matose" is as 4.0
common as " oid." N either word had any meaning in itself. In 1884 p." oid "
although it had been used scientiflcally, was not a common suffix; iJlEngli;h
words it is part of a root, as in "avoid" and "devoid." But, even if~'~',oid " is
a COIDIDon suffix meaning like, then like what? Does" Tabloid" rneah'" like
"a tablet" or "like a table"? The only thing common is flatness, which the 45
Respondents' compressed drugs do not have; they are hi-convex. In the
Matter of the Registered Trade Marks of Bass, Ratcliff; and Gretton, Ld.
(19 R.P.C. 529), shows that where a mark has been long on the Register every
reasonable intendment ought to be made in favour of the owners. [COZENS-
HARDY, L.J., referred to the "Vaseline" case on the same point.] The 50
evidence is that "Tabloid" meant the Respondents' goods to doctors and
chemists; as to the public, different views were taken by the Appellants'

* Che8eb1 olf;gh ltlanujacl1u'ing Oornpany'8 Trade Mark, 19 a.r.c, 342; L.R. (1902) 2 Ch, 1.
t
 Vol. XXI., No.ll.] AND TRADE MARK OASES. 225

In' the Matter of Burroughs, Wellcome J; Co?« Trade Marks, .

and
In the Matter of the Patents, Designs, and TradeMa~rks Acts, 1883 to.1888.

witnesses. 'The Respondents' witnesses, with a few exceptions, said it had no

meaning apart from the Respondents' goods. As to "Tabloids of," &c., if the
word-was a fancy word,thatuse subsequently, even if improper, does notafl"ect
the registration; but it was not improper. "Tabloid of chlorate of potash"
5 means Burroughs, Wellcome &: Oo.'s manufacture of chlorate of potash. After
the ". Solio" case it cannot be said. that the 'earlier decisions were favourably

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looked on in the Honse of Lords ; the question in each case is one' of fact.
'I'heonus is on the Appellants after this lapse of time.
Walter in reply.-The reference to Bass' Trade .J.lfarks and the" Vaseline"
10 easeis merely ad misericordiam. However long a mark has' been on the
Register, it ought to be taken off if it was not a good Trade Mark. [VAUGHAN
WILL1AMS, L.J.,read from the judgments in the" Vaseline" ca~e.JThat rule
is only applicable to the facts there; the question was .whether the m.arkhad
been used as a name for patented goods. [VAUGHAN WILLIAM~, L.J.-The
15 longer the mark has been on the Register the more strong istheonus in favour
of the registered owner and against the person seeking to remove it.J.The
line of reasoning does not apply-here, because the' validity of the registration of
"Tabloid " depends whether the word was within the definition; and time has
made no alteration. The question is whether the word could be registered in
20 1884~ Theonly answer of .the Respondents to our arguments is that tabloid if
it implies anything implies table-that is,flatness. Even so the comparison is
with pills; a "tabloid " is a flat:kind of disc as opposed to a pill. . If the word
is table plus" oid " it is not meaningless and not within the definition of the
Act. The issue is whether' the word was a distinctive fancy word not in
25' common use as applied to the 'goods-e.g., to tablets.
VAUGHAN WILI..IAMS, L.J.-This, ina sense, is rather a difficult case; not
in. the sense, however, that the law is difficult. I do not think there is . much'
difficulty in point of law. It may be said generally of the law that it is now
defined by . Val~ Dueer's case as modified by the" Bovril " case, and I do-not
30 think that the law thus defined is very difficult to ascertain. But thecase is a
difficult" one because it is really a question of fact which we haveto decide
here, .and .that uestion of fact · · ,. "Tabloid"'conyeyto
those .~ho4~~r It at the ate of~her· .,4 ? e"" leu· y 'of
answerIng ta qU€S Ion IS, 0 course, very considerably increased by the lapse
35 of time. We have had quotedto us dictionariesand literary productions which have
been published during the whole period between 1884 and the present time. I do
not think that sort of evidence has assisted us much. In fact I go a stepfurther; I
think that that sort of evidence has had a direct tendencyto make our task
more difficult, because it is 'difficult to eradicate altogether from one's mind. the
40 statements which have been made about the use, of this word" Tabloid;" and
its meaning at the material date, which everybody agrees is the date of the
registration. But this case is Bot the first in which the Courts have had to deal'
with that sort of difficulty. I think,as appears from the passages which 'were
read yesterday from the judgments of Lord Justice 'Stirling and Lord Justice;
45· Oozens-Hardsru: the Ohesebrough case, that the Court when it has hadvto deal
with a question of fact of this sort, long after the date of the registrationvhas
laid down a rule that in such a case thmsum~tion oU~ht to bej~ w,~ tile
E~sobf;;~~fh:;:~d~~~t:~~f;'Q!a¥:~:e~~t~::
50 as conveying at the date of registration, ought to be thrown upon the persons
who seek, after such ~ lapse' of time, to say that the Trade Mark ought not to
have been registered. But J should be very sorry if it was supposed from what
I am saying that I in any way mean to suggest that this sort of presumption in
favour of the Trade Mark, which has been registered for such a long period,
55 ought to be' allowed to overmaster the plain evidence showing that the Trade
 226 R~PORTS OF PATENT, DESIGN, [April 27, 1904.

,. In the Matter of Burroughs, Wellcome & Oo.'s Trade J.:larks,

and
In the Matter 'of the Patents, Desiqns, and Trade Marks Acts, 1883 to 1888.

Mark, having regard to the state of things at the date of the registration, ought
not to have been registered. I take it, if you had something registered as a
Trade Mark, which the evidence showed clearly ought not to have been regis-
teredat the date when it was, that no presumption would justify us in keeping
such aTrade Mark on the Register. 5
'Now, I, have to ask myself: What was the character of this Trade

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Mark in 1884? What did the word "Tabloid" convey at the moment
when it· was registered? In my judgment this word "Ta:ploig ," ,was, at
the ,tirp.~ of the ~regj5tri}tio~",,.a ',Jdistinctiv~1i "JXqrd .suggesting. the. source or
tlie origm of the goods which were covered, or Intended to be covered, 10
by it; 'and I think, further, that' at that date the word "Tabloid" 'was
not a descriptive word. As the word was understood at that time it really con-
veyed to the hearers no peculiar quality of the goods which were offered to
the public. I think that the word "Tabloid" may properly be' described at
that time as being a fancy word. I do not myself think that, having regard to l5
to the' judgments in the "Bovril" case, it could be said that a word is to be
treated as' a descriptive word because it might suggest some idea to the hearer.
It seems to me that the Trade Mark which was under discussion in the' Bovril '-'
case proves the contrary. It is perfectly impossible to say that the word
" Bovril " used in respect of an extract of meat did not suggest beef, or an ox, 20
as the materials from which the extract was made. But the mere fact that the
word" Bovril " did contain such a suggestion, to my mind is inconsistent with
the idea that the fancy word must be absolutely unsuggestive. It must not be
descriptive, but it need not be absolutely unsuggestiye.' Speaking of this, I
would like to add that it is not to the interest of any community that you 25
should so deal with any subject-matter which is regulated by Statute law as to
make the rule of law, that you deduce from the Statute, inconsistent with the"
practice of mankind. Nobody supposes that, when you sit down and
choose a fancy name, you ask someone to make" a selection at haphazard
from a dictionary, of a number of words, and you then put them into a bag, ao
and, dip your hand in, and leave it to chance what word it is that you select,
and, then use that word however foreign it may be to the subject-matter to
which you propose to apply your Trade Mark.· The real fact of the matter is
that when a man sits down to choose a Trade Mark, his mind will naturally run
on words that are more or less cognate' to the articles with reference to which the :15
Trade Mark is proposed to be registered. He sits down and does that, and having'
done, that, his next care is that the cognate word that he so chooses shall not be such
that it really describes the quality or the form of the article to which the Trade Mark
is meant to apply. When one is dealing, with the question whether it word is
descriptive, 'I think one must always bear in mind that for a word to be really 40
descriptive, it must describe something which is material to the composition of
the article to'which the Trade Mark is intended to apply. If. it does not, I do not
think that one ought easily to arrive at the conclusion that the word is
descriptive, becauseit in some way or other might suggest, or even more than
suggest might more or less describe, the particular style in which the person 45
registering has been in the habit of making up his goods; although that
is always a course which must be adopted with great care, because one must ~
be careful never to-violate that rule which has to be applied in respect to Trade
Marks, namely, that you must not adopt as your Trade Mark any 'word what-
soever which would deprive the public of the full and free user of that, word 50
when it is, a known word, and especially when it is a knownword in a particular
trade. -But, subject tothose observations,:I say not only is this word distinctive,
but,jjH my opinion, it is nota descriptive word. _
I' am not forgetting that which Mr. Walter and Mr. Gray pressed' on us
very,"much. They said that the present 'case was to be distinguished from 5Q
 \"01. XX!., No.li.] AND TRADE MARK CASES. 221
In the Matter of Burroughs, Wellcome ~ Oo.'s Trade Marks,
and
In the Matter of .the Patents, Desiqns, and Trade Marks Acts, 1883 to 1888.

the" Bovril " case, because" oid " was a known termination of English words,
and that "ril," which was the final syllable of "Bovril," was not; and
they, as I nnderstood, argned this, that the result was that in" Bovril " you
had got a word which suggested" ox " or "beef " as the substance out of which
5 the soup was made, but that that did not matter as the word was, strictly
speaking, a fancy word, not being a word in the English language at all. I

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want to say with reference to that, that according to my view, this word
" Tabloid" was, in substance, an unknown word at the moment when Messrs.
Burrouqhs and .Wellc~nne adopted it. It is quite true that you could find a
10 good many words terminating with the suffix" oid," which were familiarly used
by English speaking people; but in the main I think that those words will be
found not to be words of English origin. They were words which did not at
all set one's teeth on edge when one heard them, as "Tabloid" rather' does
mine. They were words like" trapezoid, "aneroid," and other words in rwhich
15 the first or commencing syllable, as well as the suffix, was of Greek origin.
But I doubt very much whether "oid" had then become, as it has become
now, a recognised termination for English words. Therefore, be that as
it may, I do not think that, if you took the average Englishman in 1884,
the word '~Tabloid" in respect to these medicines would have conveyed
20 anything to his mind at all. And even at the present moment there seems to
be a great difficulty in saying what it iswhich the word" Tabloid" is supposed
to convey, Certainly, if you take the meaning of the word" 'I'abl e" or "Tablet"
it does not suggest, to my mind, anything of the form of these tabloids which
were produced and sold by Messrs. Burroughs and WellcoJne; but I SlY, as a
25 juryman, that this is my conclusion in fact, and I cannot express that conclusion
in better words than it is expressed by Mr..Justice -Byrne, when he said: "1
"think the case is near the line, but treating it as a matter of fact in the
" particular case, I come to the conclusion that in March 1~84 the word was
" not' really intelligibly describing the thing sold,' which is the way in which
30 "Lord Lindley at page 607 of the report of the l Bovril ' case puts the form of
"direction to the jury." I should have preferred to express my judgment by
saying, that I entirely agree with the judgment of Mr. Justice Byrne. I
think that this word is a fancy word in that it was a coined word; .I think
that it did not describe anything intelligibly in 1884 to those who heard it.
35 I agree that you cannot say that the word is absolutely unsuggestive, but
any suggestion which you derive from it is a very inaccurate 'suggestion as
to shape, and an inaccurate suggestion as to a matter, which was in no sense
essential, or of any practical materiality in the articles to which it was
applied. '
40 There is only one other matter upon which I propose to make any observation
and that is on the part of the argument which was based upon the- previous user
of the word" Tablet." I think that the word" Tablet," although that of course
was an accepted Eng-lish word, did not- really convey anything material about
the article to which the. Trade Mark was to be applied. Then can it be said
45 that because Messrs. Burroughs and Wellcome registered the word" Tabloid "
t\VO years afterwards that their previous user of theword "Tablet" converted
that which lmt for that previous _user would have been an invented word, a
coined fancy word, into a word that by their previous user of the word" Tablet"
had acquired a meaning. I do not think so. Of course, this is really only part
50 of what one has to consider as a matter of fact. I am, notwithstanding that
previous user of the word" Tablet," of opinion that "Tabloid" when first
adopted as a Trade Mark by Messrs. Burroughs and Wellcome, did not Intelli-
giblydescrlbe .anything.
, Under these circumstances I have only thought it right to mention what was
55 said about the word .• Tablet," and the ,user of it as a Trade Mark, to show that
 228 REPORTS OF PATENT, DESIGN, [April 27, 1904.

Itt the Matter of Burroughs, Wellcome & Co.'s Trade Marks,

and
In the Matter of the Patents, Designs, and Trade Marks Acts, 1883 to 1888.

in arriving at the conclusion of fact which I have arrived at I have not left that
argument out of consideration.
In my judgment, th.e judgment of Mr. Justice Byrne is quite right.
STIRLING, L.J.-In this case the validity of the registration of the words
" Tabloid" and " Tabloids" under the Trade Marks Act of 1883, as applied to a
substances used in medicine and pharmacy, is called into question. The regis-

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tration is justified upon the ground that at the date at which it took place,
namely, 1884, the word" Tabloid" was a distinctive fancy word not in common
use. .I think there is no contest that the word was not in common use in the
year 1884. It appears to have been a word coined at that date, and if it was not 10
in common use at that time it might fairly be taken to be distinctive. Therefore
I do not enter into any discussion as to the terms "distinctive" and "in common
"use." The real contest in this case is whether these words were in 1884 "a
" fancy word or words," or not. The meaning of "fancy word or words," as
used in the Act of 1883, 'has been considered by the Court of Appeal in two 15
cases, namely, in Van Dueer's case, and in the case of the Trade Mark
" Bovril," and, of course, by those decisions we are bound. The first of these
cases, Van Dueer's case-with which was heard another case called Leaf'S
case-related to the application, in the way of a Trade Mark, of 'the words
"Melrose" and" Electric" (words which were not. new at the time), and some 20
principles were laid down with regard to the meaning to be attributed to the
words" fancy word or words" which were supposed to extend to all cases; but
that matter came to be re-considered in the " Bovril" case, which had to deal
with a word which, like the word" Tabloid," was a new one at the date of its
registration. 25
It appears to me, as I think it appeared also to Mr. Justice Byrne, that the
proper course is to deal with the present case relating to the word" Tabloid" in
the way in which the Court of Appeal dealt with the word" Bovril " in that
case. What does Lord Justice Lindley, who gave the leading judgment in that
case, say is the proper thing for him to do? He said, "It would be altogether 30
" wrong for us to take the Act of 1883 and substitute for the words' fancy
" word' , a non-descriptive word.' That is not the language of the legislature.
" But I agree that a word which describes the article to which -it is applied will
", not do. Let us, therefore, ask ourselves whether 'Bovril' is a descriptive
"word." Then he said: "To my mind it is not descriptive, notwithstandlng 35
"Mr. Bower's very ingenious argument. He tries to make it out to be a
" descriptive word, not by taking the word, but by taking a little bit of it, and he
" says that because' Bov ' may have some relation, and does have some relation
"to 'ox,' therefore 'Bovril' describes what? I do not see that it describes
" anything at all." Then later he said: "I think it is pre-eminently and purely 40
" a question of fact. Now I ask myself this? Supposing that a jury were
" asked to say whether on the 2nd November 1886 'Bovril ' was a fancy word
" not in common use, and supposing they said, upon a direction from the judge,
" which I think it would be the duty of the judge to give, that if they were of
" opinion that it really intelligibly described the thing sold it would not do, 45
" could they, with that direction, reasonably say it was not a fancy word not in
"common use? I do not think they could." Now I think that that is the
process which we ought to apply to the word "Tabloid" which we have to
consider here. Mr. Justice. Byrne has taken that course, and his answer to the
question has been already read, therefore I do not repeat it. Speaking for 50·
myseif, I can only say that I entertain greater doubt than he seems to have
entertained, or .than is felt by my brother, as to the result of the evidence in
this case. Mr. Justice Byrne said that there was a suggestion or atmosphere of
description about the 'Y0rd as used, but he came to the conclusion that it could
not be .said to have been other than a fancy word. 55
 Vol. XXI., No. II.] AND TRADE MARK CASES. 229

In the Matter of Burroughs, Wellcome &; Oo?« Trade Marks,

and
In the Matter of the Patents, Designs, and Trade Marks Acts, 1883·to 1888.

I should now like to state the difficulty which occurs to me. The question which
we have to consider is whether" Tabloid" was a fancy word when it was invented
in the year 1884. In dealing with that question we must' not treat it in an
abstract manner, but see what were the circumstances which preceded the
5 introduction of the word. I think we start with this: that before 1884 the word
" Tablet" was well known in connection with medicines. I find in the Imperial

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Dictionary, published in the year 1874, that is ten years before, this meaning of
"Tablet": "A medicine in a square form; tablets of arsenic wereformerlyw?rn
"as a preservative against the plague. A solid kind of .electuary or confection
10 "made of a dry ingredient usually with sugar and formed into little flat ~quarea ;
" called also lozenge and troche. Also applied to anything made up In a flat,
" square shape, as a tablet of soap." Further, we know this, that for some years
previous to 1884 this very firm of Burroughs and Wellcome bad found tha~ a
convenient and useful mode ot making up medicines was to make them up In
15 the form of what they called tablets, which were, broadly speaking, small
amounts of substance of globular shape, and they had sold medicines so made
up under the name of "Tablets," and in fact they had registered the word
" Tablets " as their Trade Mark in connection with these preparations. 'I'hey
appear to have been advised that "'rablets" was a word the registration of
20 which could not be maintained, and they applied themselves to see whether
they could not find another word which could be used apparently for the same
purpose as the word " Tablet" had been used before. They fixed on the word
"Tabloid." What does" Tabloid" suggest? It suggests a connection either
with "'fable" or ., Tablet." It is registered as applied to preparations for
25 use in medicine and pharmacy. We have not heard of the use of the word
"Table" in connection with medicine or pharmacy, but, as I have already
stated, we have heard of the use of ., Tablet," and it seems to me that it might
be inferred from the evidence which we have in this case, that the word
"Tabloid" had a descriptive meaning. The termination "oid " is one which is
30 not uncommon in words which are used in the English language, and it
means of a shape or kind similar to that which is denoted b)" the early
part of the word to which "oid" is affixed. I confess I feel a great deal
of hesitation as to whether the true inference of fact is not that "Tabloid"
did mean, as applied to medicine, a preparation made up, not precisely in.
35 the same form as that which had hitherto been designated under the name
"Tablet," but of something of the same kind, and whether it is not descrip-
tive in that sense. But Mr. Justice Byrne has taken a different view, and
my brethren both take the same view as Mr. Justice Byrne; and I think in
deciding this question that it has to be borne in mind that, as laid down in the
40 "Vaseline" case, when a Trade Mark is impeached after so long a distance of
time as occurs in this case, it is fair that if any doubt exists the person who has
had his Trade Mark ·on the register for that long period, and has openly and
largely made use of it, should have the benefit of the doubt.
For these. reasons I am not prepared to di:tfer from Mr. Justice Byrne, or my
45 Brethren, and therefore think that the Appeal fails.
OOZENS-HARDY, L.J.-I share to a large extent the difficulties which have
pressed on .Lord Justice STIRLING. If this case had fallen to be decided ten
years ago I cannot doubt that the mark would have beentaken off the register
as not being" a distinctive fancy word not in common use." But the swing of
50 ~he judicial penduI~m has been very great, and the extreme point of that swing
IS to be found, I think, in the present case.
The real difficulty is, I think, in putting a meaning on the word" fancy."
It certainly means something more than newor newly coined j and certainly
means something more than "invented." The real difficulty is to say what
55 more is invol ved in the use of the word " fancy." •
 230 REPORTS O'F PATENT, DESIGN," (April 27, 1904.

In the Matter oj Burrouqhs, WellcOlne tb Oo.'s Trade Marks,

and
In the Matter 01 the Patents, Designs, and Trade Marks Acts, 1883-to 1888.

The present case is e.J;trem.elynear the line, but reading, as I have done
very carefully, the decision of the Court of Appeal .in the "Bovril" case, by
which, in so far as it may qualify earlier cases, we are bound, Lam driven to
the conclusion, that, although this 'word is suggestive of description, it is not 5
necessary that the word should be absolutely unsuggestive of it, and I cannot
find in the present case anything sufficiently near to description to enable Die

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to distinguish it from the "Bovril" case. As a juryman, I am not able to say
that " Tabloid ". really intelligibly' described a thing, to use the words of Lord
Justice Lindley, or that it is otherwise than non-descriptive and meaningless 10
as applied to the articles in -q uestion, to use the words -of Lord Justice Lopes.
Under these circumstances I cannot say that ~Mr. Justice Byrne was wrong
in declining to remove from the Register a mark which had been on for nearly
20 years, and I agree -therefore, that the appeal must be dismissed.
l.l{oulton, K.O.-The appeal will be dismissed with costs.
VAUGHAN 'VILL1AMS, L.J.-Yes. 15

IN THE HIGH COURT OF JU8TICE.-CHANCERY DIVISION.

Before MR. JUSTICE KEKEWICH.

13th November, 1903.

SID~.A.LL AND HILTON, LD. V. WOOD.

Patent.-Actif!n for infringement.-Invention.-Subject-n1Ctttere-Novelty.- 20

Judgmentfor Defendant-s-Certificate as to Particulars of Objections.
The Plaintiffs sued for infrinqernent of a Patent for an invention fur wire
mattresses, which, according to the Plaintiffs' expert witness, consisted in. the
combination of several parts, with a practical continuity from side to side of'
the framework, over wht·ch the wire fabric was stretched; 'the device rJ! gairi,ing 25
strength, by overlapping being admitted to be an old idea. In dismissing the
action 011, the ground that no invention was· proved, the Court granted a
Oertificate as to the Particulars of Objections delivered by the Defendant u'ith
respect to (a) subject-matter, (b) vagueness, and (c) noveltv.