Dating Nickel Silver Flatware - 'Brazilian Silver'
Below is a copy of a law report of a case heard in the Chancery Division of the High Court of Justice in March, 1898. The case between the Birmingham flatware manufacturers, Daniel & Arter, and that of Whitehouse, was over the right to use of the term 'Brazilian Silver'. The details of the case help reveal a more precise dating of products that bear the 'Brazilian Silver' name.
Thus, if I'm reading it correctly, products marked 'Brazilian Silver' can be dated to the following timelines:
Marked: 'Elkan' and 'Brazilian Silver' - 1881-1883 - Manufactured by Daniel & Arter.
Marked: 'Brazilian Silver' (without device) (and perhaps with Whitehouse marks) - 1885-1894 - Manufactured by Frederick Whitehouse & Co..
Marked: 'Brazilian Silver' (with device) (and likely with D & A marks)- As from 1886 - until at least 1898, but probably a lot longer - Manufactured by Daniel & Arter.
In the last of his series of lectures at King's College Professor Cutler dealt with " Trade-names." He defined a trade-name as a name under which a trader sells his goods in the market, and by which his goods are known in the market as distinguishing them from the similar goods of other traders.
He pointed out that if a trade-name is such as to be an "essential particular " under the Act, it can be registered as a trade-mark, and that a trade-name can also be registered as part of a trade-mark, but for the protection of unregistered trade-names the owner has to rely on the common-law rule prohibiting a man from passing off his goods as the goods of another. He pointed out that the plaintiff in a trade-name case must establish two propositions — first, that his trade-name denotes and distinguishes his goods in the market ; and, second, that the defendant is using the trade-name in such a way as to pass off his goods as those of the plaintiff. The theory of the law is that the owner of a trade-name has no monopoly in it, but only the right to prevent others from using it in such a manner as to pass off their goods as his, and, except in very special cases, the Courts carry out this theory in practice.
He referred to a case in which a person named Whitehouse had been restrained by injunction from using the trade-name " Brazilian Silver " without clearly distinguishing. Whitehouse afterwards began to use the term " F. Whitehouse's Brazilian Silver," and it was held that he had not thereby clearly distinguished.
Professor Cutler said that an extremely difficult question, and one which has not approached a final settlement, is what is the extent of user necessary to establish a trade-name in the market, extent meaning extent in point of time and in point of locality. As to extent in point of time, if a trader's goods " catch on," his trade-name soon becomes known, but if his trade is built up by slow degrees his trade-name can only be built up by slow degrees also. As to locality the lecturer referred to a case in which it was laid down that the user of a trade- name must be universal in England and Wales. He said that if the meaning of this judgment is that if a man has an established trade-name in Birmingham and the Midlands he is bound, in order to obtain protection for it, to prove that it is equally well known in Devonshire and Cornwall, but he did not agree with the Judge who had laid down this rule. If it be necessary to prove that a trade- name is known "universally" in the literal sense of the word, it would be almost impossible ever to establish a trade- name.
The lecturer then spoke of disclaimers, and put the question whether, if a trader registers a trade-mark (a part of which consists of his trade-name), with a disclaimer to any right of the exclusive use of that trade-name, can he afterwards sue for infringement of his trade-name which he has thus disclaimed ? After examining four cases bearing on this subject, Professor Cutler said that it appeared to him that the true principle is that by registering a trade-mark with a disclaimer to the right of the exclusive use of a word a trader does not thereby sanction or licence the use of that word together with such accompaniments as will lead to the goods of another being passed off as his goods, but that he cannot, in a passing-off action, rely simply and solely on the word which he has disclaimed. He then referred with approval to the following provision of the London Chamber of Commerce Bill : —
Any disclaimer under this Act, or any enactment repealed by this Act, shall be deemed to be a disclaimer for the purposes only of registration under this Act, and no such disclaimer shall in any way affect or prejudice the rights, if any, of the applicant, at common law or otherwise, to the matter disclaimed.
He pointed out that if this provision becomes law, a trader in a passing-off action will be able to rely on his trade-name alone, even though it has been disclaimed.
Source: The Chemist and Druggist - 21st December 1901
