his application for a patent, that gave him no property in his invention in Canada so as to affect even persons having notice of it with an obligation not to manufacture it here" (a). DISCLOSURE TO ASSISTANTS (b). It is no defence to an action for infringement of a patent granted to the plaintiff that before the patent was obtained the plaintiff had employed the defendant to manufacture a certain number of the articles (c). If a person be expressly engaged to invent or improve a machine or process of any kind for another, the invention or process is the property of the one for whom it is done (d). DURATION OF PATENT (e). Formerly a Canadian patent expired as soon as any foreign (e.g., British) patent for the same invention existing at any time during the continuance of the Canadian patent expired (f). But this law has been amended by sub-s. 3 of R. S. C. 1906, c. 69, s. 8. PATENT FOR COMBINATION (g). A patent for a mechanical combination is not infringed unless the combination is taken in essence and in substance (h). If so taken the patent is infringed (i). VENUE IN ACTION FOR DAMAGES. Under s. 31 of the Patent Act (k) the venue of an action for infringement is laid, as against a defendant corporation, at the place of the registry nearest the head office of the corporation (1). PART III. TRADE MARKS AND TRADE NAMES (a). LEGISLATION. The Trade Mark and Design Act is R. S. C. 1906, c. 71. The Criminal Code (b) deals with the forgery of trade marks and the fraudulent marking of merchandise (c). RIGHT TO EXCLUSIVE USER (d). The essential elements of a legal trade mark are (1) the universality of a right to its user, i.e., the right to use it the world over (e) as a representation of or substitute for the owner's signature (ƒ); (2) exclusiveness of the right to use it. First use is the prime essential of a trade mark (g), and evidence of prior user can be given to invalidate one (h). IMITATION OF TITLE OF PERIODICAL (i). In Carey v. Goss (k) the defendant was enjoined from publishing a paper called the Traveller in infringement of an existing periodical called the Commercial Traveller and Mercantile Journal. MISREPRESENTATION (1). The principle on which the Court protects trade marks is that it will not permit a person to sell his own goods as the goods of another; a person, therefore, will not be allowed to use names, marks, letters or other indicia by which he may pass off his own goods to purchasers as the manufacture of another person (m).› DESCRIPTIVE WORDS (n). Property cannot be acquired in marks, &c., known to a (a) P. 713, supra. (b) Now R. S. C. 1906, c. 146. (c) ss. 486-495. See Rex v. Cruttenden, 10 O. L. R. 80; Rex v. Irvine, 9 O. L. R. 389; Reg. v. T. Eaton Co., 31 O. R. 276; Queen v. Authier, Q. R. 6 Q. B. 146; Queen v. Howarth, 1 Can. C. C. 243. (d) P. 714, supra. (e) See Smith v. Fair, 14 O. R. 729, as to foreign user; Davis v. Kennedy, 13 Gr. 523, position of alien. (f) Bush Manufacturing Co. v. Hanson, 2 Ex. C. R. 557. (g) Groff v. Snow Drift Baking Powder Co., 2 Ex. C. R. 568. (h) Partlo v. Todd, 12 O. R. 171; 14 A. R. 444; 17 S. C. R. 196. (i) P. 715, supra. (1) P. 716, supra. (m) McCall v. Theal, 28 Gr. 48. particular trade as designating quality merely, and not in themselves indicating that the goods to which they are affixed are the manufacture of a particular person. Nor can property be acquired in an ordinary English word expressive of quality merely, though it might be in a foreign word or a word of a dead language (a). GEOGRAPHICAL WORDS (b). In Armstrong v. Raynes (c) the defendants as well as plaintiff manufactured lime at Greenhead, and the defendants were restrained from using a trade mark similar to plaintiff's "Greenhead lime." Probably this decision must be considered as revised by Grand Hotel Company of Caledonia Springs v. Wilson (d). FANCY OR INVENTED WORDS (e). The use of a fancy or invented word will not give the inventor thereof any exclusive rights in the words by which the article meant is described. Thus, when the word complained of was "Sta-Zon," and the plaintiff's word was "Shur-On," meaning an eye-glass referred to in plaintiff's literature as on to stay on," an eye glass that stays on," this reference did not make the defendant's word a colourable imitation (ƒ). 66 IDENTICAL OR VERY SIMILAR (g). Visual resemblance is not necessarily the only thing to be considered; the possibility of confusion to the ear may also be an element. Thus, the letter "B" stamped by defendants on buttons of braces manufactured by them in the same way as the letter "D" stamped by plaintiffs on their buttons of braces was held an infringement (h). 66 REGISTRATION (i). Ownership is a condition precedent to registration (k). Registration is a condition precedent to a right of action (). But registration of an assignment is not necessary to the validity of the assignment (m) Subsequent registration of a mark in Canada is not invalidated by prior registration in the United States (n). Judicial and ministerial acts. OFFICERS of courts of justice act either judicially or ministerially. A judicial act is one which involves the exercise of a discretion, in which something has to be heard and decided. A ministerial act is one which the law points out as necessary to be done under the circumstances, without leaving any choice of alternative courses. Every purely formal step in a legal process, and everything which is necessary to carry into execution what has been judicially decided, is ministerial. It is not always easy to exactly distinguish between the two classes of acts. If application is made to a magistrate to issue a distress warrant against a defaulting ratepayer, he has jurisdiction to inquire as to whether the rate has been duly made and published, and as to whether it has been paid, but if satisfied on these points, he is bound to issue his warrant, and cannot deal with any question of rateability (a). The issuing of the warrant, therefore, is a ministerial act, though the preliminary inquiry is a judicial act (b). On this analogy it was sought in Linford v. Fitzroy (c) to recover damages against a magistrate in an action for unreasonably refusing to take bail in a case of misdemeanour, and it was contended that, though the magistrate might have a (a) In case of tender of part payment, the magistrate may, in his discretion, issue his warrant in respect of the nontendered part only: Rex v. Gillespie, (1904) 1 K. B. 174. And see Wiles, Ez judicial discretion as to the sufficiency of the bail tendered, yet when this preliminary condition was satisfied his duty became simply ministerial. The Court, however, held the duty could not be thus split and divided, and that it must be treated as purely judicial. In Garnett v. Ferrand (a) it was held that a coroner in ordering a person to be excluded from his court was acting judicially (b). And first as to judicial acts. Responsibility depends not upon Judicial acts. the particular office which the party holds, but upon the function which he performed on the occasion in question. Different notions on this subject seem to have prevailed formerly. Thus Holt, C.J., in Groenvelt v. Burwell, says: "Commissioners of bankrupts may commit a man for refusing to be examined concerning the estate of the bankrupt, but they are not judges, and their proceedings are traversable" (c). But in Doswell v. Impey (d) it was held that such commissioners were entitled to the full protection of the judicial position (e). Subordinate officers of courts of justice, many of whose duties are ministerial, frequently act judicially as well, and on the other hand magistrates, who are the judges of courts of summary jurisdiction, have also certain ministerial functions. Thus, the assembly of licensing justices at brewster sessions is not a court of summary jurisdiction, there being no lis and no controversy inter partes (f); apparently, however, the confirming authority is (g). kinds of courts. In considering the responsibility for judicial acts it is necessary Different to bear in mind, first, the distinction between courts of record and courts not of record, and, secondly, between the Supreme Court and courts of limited jurisdiction. (a) (1827) 6 B. & C. 611. (b) See too as to the distinction between a judicial and ministerial act, Ward v. Freeman, (1852) 2 Ir. C. L. R. 460, in which case the Irish Exchequer Chamber were equally divided as to whether a county judge on receiving notice of appeal acted judicially or ministerially. (c) (1699) Lord Raym. p. 467. (d) (1823) 1 B. & C. 163, overruling Miller v. Seare, (1777) 2 W. Bl. 1141. Courts of record (e) So also the General Council of Medical Education appear to be acting judicially in investigating a charge of infamous conduct in a professional respect brought against a medical practitioner Allbutt v. The General Council of Medical Education and Registration, (1889) 23 Q. B. D. 400. (f) Boulter v. Kent Justices, (1897) A. C. 556. (g) Reg. v. Manchester Justices, (1899) 1 Q. B. 571. |