E. T. 1848. Queen's Bench. LOWNDES BROWNE. The remaining nine counts were grounded on three other designs, three counts being applied to each design, and the defendants separately pleaded nil debet. The trial took place before TORRENS, J., at the Spring Assizes of 1848 for the county of Antrim. It appeared that the plaintiffs were manufacturers of ornamented sewed muslins, having establishments in Paisley and in London; and that the defendants were manufacturers carrying on a similar trade in the county of Down. The designs, whose piracy was complained of, were designs for sewed muslin collars and capes. It was proved by the evidence that the plaintiffs kept in their employment a designer, whose sole occupation was the inventing of new patterns; which patterns being designed, were transferred by lithographic ink to muslin, and when so stamped with the pattern, were given out to be worked. This was called "printing" in the trade. The worker followed the pattern, and with her needle worked the design or pattern in raised and ornamental needle-work on the muslin, as stamped, and according to the intention thereby indicated for her direction; and on the needle-work being completed the worked muslin was bleached, and all traces of the stamped pattern having been removed by the bleaching, the work appeared merely as ornamental sewing or needle-work. The piracy was thus effected: a piece of damped paper was applied to the pattern so stamped on the muslin or woven fabric, and both being put into a press, a fac simile of the design was by the pressure communicated to the paper, with the exception that the pattern appeared on the copy in a converse form. Some slight alterations were then made on the copy-viz., the insertion of a substituted or additional head and some eylott holes; and the copy of the original design so made and nominally altered was used by its fabricator as if it had been his own original design, was transferred by lithographic ink and stamped on muslin, and given out to the needle-work woman to be followed and worked by her needle in the same manner as had been pursued in reference to the original pattern or design; and after being bleached the work was ready for sale. The articles in question, when finished and ready for sale, were what are called ladies' sewed muslin collars, not printed goods, but bleached articles composed of thread. The registration of the design of the plaintiffs was under 5 & 6 Vic. c. 100, under class ten of the 3rd section. The defendants attempted to show that the design was not original, as it comprised both old and new patterns, and that the registration should have been under class twelve; but calling no witnesses, the learned Judge left two questions to the jury; first, whether or not the pattern was an original one, invented and designed by the plaintiffs' servants? and secondly, whether or not the imitation pattern was a pirating of that original pattern? His Lordship held that the registration under class ten was correct; and the jury (the plaintiffs not insisting on the penalties for the other designs) found for the plaintiffs £30 damages and 6d. costs. A rule nisi being obtained to set aside the verdict, on the ground of misdirection of the learned Judge, cause was now shown by Whiteside and Holmes (with them was Faloon.) This action is brought under 5 & 6 Vic. c. 100; and the 3rd section of that statute is the one on which we rely, and the class No. 10 there specified.* It is said we have not registered under the proper class, but this objection cannot be made after we have obtained from the registrar *Section 3.-" And with regard to any new original design (except for sculpture and other things within the provisions of the several Acts mentioned in the schedule C to this Act annexed), whether such design be applicable to the ornamenting of any article of manufacture, or of any substance, artificial or natural, or partly artificial and partly natural, and that whether such design be so applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means such design may be so applicable, whether by printing or by painting, or by embroidery, or by weaving, or by sewing, or by modelling, or by casting, or by embossing, or by engraving, or by staining, or by any other means whatever, manual, mechanical or chemical, separate or combined; be it enacted that the proprietor of every such design not previously published either within the United Kingdom of Great Britain and Ireland or elsewhere, shall have the sole right to apply the same to any articles of manufacture, or to any such substances as aforesaid, provided the same be done within the United Kingdom of Great Britain and Ireland, for the respective terms E. T. 1848. LOWNDES บ. BROWNE. E. T. 1848. a certificate of registration. Besides it is in evidence that these Queen's Bench. articles may be done in any colour. LOWNDES V. BROWNE. The 14th section of 5 & 6 Vic. c. 100, provides for the appointment of the registrar of designs; he being thus appointed by the Act of Parliament, if he register the design wrong how can the designer be affected? Section 15 defines his duties, he is not to register any design unless he be furnished with two copies, drawings or prints of such design, with the name of the proprietor and his residence, and the number of the class in respect of which the registration is made, and on every copy, drawing or print he is to affix a number, and to retain one copy to be filed in his office. The mischief that the Act provides against was that the names of the parties and their place of business were not given, and so it is one of the conditions of registration that the style of the firm and the place of carrying on business be given, but in no respect will a wrong registry vitiate the right of the plaintiffs. [BLACKBURNE, C. J. This is plainly a design applicable for a pattern, the textile fabric exists per se, the pattern is impressed upon it and the ulterior process is sewing.]-These are printed goods, and clearly fall within the latter words in class ten, "if the design be applied by printing or by any "other process by which colours are or may hereafter be produced "upon tissue or textile fabrics."-[MOORE, J. The registrar is to take his instructions from the pattern, and the certificate of the registration is conclusive.]-But the certificate is evidence of a hereinafter mentioned, such respective terms to be computed from the time of such design being registered according to this Act, that is to say," &c. "In respect of the application of any such design to ornamenting any article of manufacture contained in the seventh, ninth or tenth of the classes following, for the term of nine calendar months," &c. Class 10, including "woven fabrics composed of linen, cotton, wool, silk or hair, or of any two or more of such materials, if the design be applied by printing or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics, excepting the articles included in class eleven." Class 11" Woven fabrics, composed of linen, cotton, wool, silk or hair, or of any two or more of such materials, if the design be applied by printing or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics, such woven fabrics being or coming within the description technically called furnitures, and the repeat of the design whereof shall be more than twelve inches by eight inches." novelty of design as well as of other matters: Neilson v. Har- E. T. 1848. ford (a). Here then we have a design and a specification of the class under which it is registered, and proof that it is an article to which printing may be applied. Whiteside was stopped, and the Court called on— Tombe and R. Andrews (with them M'Farland), contra. The 1st section of the statute shows the object of the Legislature in passing the Act, viz., that as the protection afforded by the previous Acts "in respect of the application of designs to certain articles of manufacture" was not sufficient, it was expedient to extend them, and the 3rd section gives the extended protection. It provides to the effect that with regard to any new and original design, whether applicable to the ornamenting of any article of manufacture or of any substance, artificial or natural, and whether so applicable for the pattern or for the shape, or for the configuration, and by whatever means such design may be so applicable, whether by printing, painting, embroidery, weaving, sewing, modelling, &c., &c., the proprietor of every such design (not previously published) shall have the sole right to apply the same to any article of manufacture or to any such substances for the respective terms therein mentioned; that is to say— In respect of the application of any such design to ornamenting; first, articles of metal; second, of wood; third, of glass; fourth, earthenware; fifth, paper-hangings; sixth, carpets; eighth, shawls not in class seven; eleventh, woven fabrics composed of linen, if the design be applied by printing, the fabric being furnitures and the repeat of the design more than twelve inches by eight-a protection of three years. In respect of the application of any such design to ornamenting; seventh, shawls, if design applied solely by printing; ninth, yarn, thread or warp, if design applied by printing, &c.; tenth, woven (a) 8 Mee. & Wels. 806. Queen's Bench. LOWNDES บ. BROWNE. E. T. 1848. fabrics composed of linen, cotton, &c., if design applied by printing Queen's Bench. or other process by which colours are produced (except the articles in class eleven)-a protection for nine months. LOWNDES BROWNE. In respect of the application of any such design to ornamenting; twelfth, woven fabrics not comprised in any preceding class; thirteenth, lace, and any article of manufacture or substance not comprised in any preceding class—a protection of twelve months. The Legislature has by this section kept each class distinct and separate, and extended to each the proper measure of protection which each, according to its peculiar circumstances, required; and where the words "if design be applied" are used in the classification, they clearly refer to the words in the 3rd section, he "shall have the sole right to apply the same," that is, the right to apply it in ornamenting the article specified in the manner in which, when completed, it is presented to the public. The printing of the pattern on the muslin in this case is merely a guide for the needle-worker; and when it has served this purpose, every trace of it is removed by the bleaching of the article; what is presented for sale is ornamental needle-work and nothing else. To hold that the printing of the pattern thus as a mere guide to the workwoman determined the class for registration, would confound the distinctions between the several classes which the Legislature has so carefully and elaborately established. In producing the effect or result which the statutable class denotes, various separable, various accidental conveniences or guides for the worker may be used, which wholly disappear in the finished work, or all such conveniences or guides may be dispensed with; and the principle contended for is in effect this, that the use of this separable or accidental convenience or guide, or the dispensing with it, shall govern the class. Take for instance class seven, where a protection of nine months is given if the design be applied to shawls solely by printing or other process by which colours are produced; and if the principle contended for be established, the manufacturer, by having recourse to the needle for the purpose of tracing a guide for the printer or colourer (though the thread be afterwards withdrawn and form no part of the finished work), can take the shawl out of class seven and bring it under class eight, in which he will |