Millington v Fox
| Jurisdiction | England & Wales |
| Judgment Date | 24 March 1838 |
| Date | 24 March 1838 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 956
HIGH COURT OF CHANCERY
See Burgess v. Burgess, 1853, 3 De. G. M. & G. 896; Followed, Dixon v. Faweus, 1861, 3 El. & El. 546. See Ainsworth v. Walmsley, 1866, L. R. 1 Eq. 524. Distinguished, Tonge v. Ward, 1869, 21 L. T. 480. See Wotherspoon v. Currie, 1870-72, 23 L. T. 444; L. R. 5 H. L. 508. Followed, Ford v. Foster, 1872, L. R. 7 Ch. 623; Singer Manufacturing Company v. Wilson, 1876-77, 2 Ch. D. 454; 3 App. Cas. 391; Orr-Ewing v. Registrar of Trade. Marks, 1879, 4 App. Cas. 494. See Levy v. Walker, 1879, 10 Ch. D. 448. Followed, Singer Manufacturing Company v. Loog, 1880-82, 18 Ch. D. 407; 8 App. Cas. 30. See Borthwick v. "The Evening Post," 1888, 37 Ch. D. 453. Distinguished, Proctor v. Bayley, 1889, 42 Ch. D. 390. See Valentine Meat Juice Company v. Valentine Extract Company, Ltd., 1899-1900, 17 R. P. C. 9, 673. Thynne v. Shove, 1890, 45 Ch. D. 581. Followed, Cellular Clothing Company v. Maxton & Murray [1899], A. C. 326; Bourne v. Swan & Edgar, Ltd. [1903], l Ch. 223.
[338] millington v. Fox. March 16, 17, 23, 24, 1838. ,.^3. [SeeBwgessv. Burgess, 1853, 3 De. G. M. & G. 896 ; Followed, Dixm v. Faweu-s, 1861, 3 El. & El. 546. See Ainswarth v. Walmsley, 1866, L. R. 1 Eq. 524. Distinguished, Tmge v. Ward, 1869, 21 L. T. 480. See "Wotherupmm v. L'time, 1870-72, 23 L. T. 444; L. E. 5 H. L. 508. Followed, Ford v. Foster, 1872, L. R. 7 Ch. 623; Singer Manufacturing Company v. [Vilion, 1876-77, 2 Ch. D. 454; 3 App. Gas. 391; Oir-j00f / % a eg* Swing v. Registrar of Trade. Marks, 1879, 4 App. Gas. 494. See Levy v. Walker, 1879, '/ ' ' ' '" 10 Ch. D. 448. Followed, Singer Manufacturing Company v. Loog, 1880-82, 18 Ch. D. 407 ; 8 App. Gas. 30. See Borthwick v. " The Evening Pout," 1888, 37 Ch. I). 453. Distinguished, Proctor v. Bayley, 1889, 42 Ch. D. 390! See Valentine Meat Juice Company v. Valentine Extract Coinpam/, Ltd., 1899-1900, 17 R. P. C. 9, 673. Thynne'v. Shove, 1890, 45 Ch. D. 581. Followed, Cellular Clothing Company v. Morton & Murray [1899], A. C. 326; Bourne v. Swan it Edgar, ^.'[1903], l'Ch. 223.] The Court will grant a perpetual injunction against the use, by one tradesman, of the trade marks of another, although such marks have been so used in ignorance of their being any person's property, and under the belief that they were merely technical terms. As a general rule, the costs of the cause should follow the result of the cause ; but an exception will be made where a part}' has established his object by means of an unnecessary degree of litigation. Thus, the Plaintiffs having filed a bill to restrain the Defendants from using certain trade marks, and for an account of the profits made by the sale of goods so marked, obtained an ex parte. injunction. On the same day, the Plaintiffs received a letter from the Defendants' solicitor, in which the Defendants stated (through their solicitor) that they had never used the marks since they were aware they were private property ; and that they did not intend to use them again ; and they offered to compensate the Plaintiffs for any injury they might have sustained. The Plaintiffs, however, prosecuted the cause to a hearing; and then, by their counsel, abandoned their title to the account, because it was so small as not to be worth taking. The Lord Chancellor, although he made the injunction perpetual, refused the Plaintiffs the costs of the suit. The bill, which was filed on the 7th of August 1834, stated that the Plaintiffs, Crowley Millington and Thomas Isaac Millington, carried on, and had for many years carried on, the business of manufacturing steel for sale, at Swalwell, Winlaton Mill, and Team, all in the county of Durham, near Newcastle, and at Greenwich, in Kent, and in Thames Street, London ; and that the Plaintiffs' works at Swalwell were known as "The Crowley Works:" that the business carried on by the Plaintiffs was originally founded at the end of the seventeenth century, or in the early part of the eighteenth century, by a person of the name of Crowley, who invented or introduced a particular mode of manufacturing steel, which has ever since been followed by the Plaintiffs and those whom they succeeded in business : that some descriptions of steel so manufactured were known as Crowley's German or shear steel, and the same and other descriptions, by the name of Crowley steel: that about the year 1782 the Plaintiffs' grandfather, Isaiah Millington, became a partner in the business, and that it has ever since been carried on by him or his descendants, either alone or with partners; and that, from the time at which [339] he entered the business, the firm has been known by the name of Crowley, Millington & Co., and the steel manufactured by them has been known in the market by the name of Crowley steel, or Crowley Millington steel: that the steel manufactured by the Plaintiffs and their predecessors has always been distinguished by certain marks upon the bars or pieces of steel so manufactured : that the principal of these marks was originally " Crowley," and afterwards " Crowley Millington," or one of those names : and that such marks 3 MY. &CR. 340. MILLINGTON V. FOX 957 have been stamped on shear steel, faggot steel, cast steel, blistered steel, and coach-spring steel: that the letters " I. H." were, upwards of fifty years ago, introduced into the marks stamped on double shear steel made by the Plaintiffs' firm, being the initials of the name of John Heppel, their principal workman in that steel. The bill went on to state that the Defendants, James Fox and Samuel Fox, had, for more than six years before the filing of the bill, carried on at Sheffield the business of manufacturers of steel, under the name of "Fox Brothers," or "Fox Brothers & Co.;" and that they had manufactured considerable quantities of steel, which they had marked with the Plaintiffs' before-mentioned marks ; and that they had so marked steel manufactured by them, in order that it might be sold in the market as steel manufactured by the Plaintiffs ; and, further, that other persons besides the Defendants had marked steel with the Plaintiffs' marks ; and that the Defendants had bought the steel so marked and sold it again. The bill charged that the Defendants were still in the habit of selling, or sending for exportation, great quantities of steel stamped with the Plaintiffs' marks. The prayer of the bill was that the Defendants might account to the Plaintiffs for the profits made by them [340] by the sale of steel stamped with the Plaintiffs' before-mentioned names or marks, and might deliver up to 1)6 destroyed all steel not manufactured by the Plaintiffs, hut stamped with their names or marks, and all instruments used or intended to be used in making such marks; and that the Defendants might be restrained by injunction from stamping steel with the before-inentioned names or marks, and from manufacturing or selling steel so stamped. The answer of Samuel Fox stated that, in June 1834, before the bill was filed, James Fox went to America, and had not since returned ; and that...
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...form of the action, and it became dependent upon proof, inter alia, of misrepresentation. An early example of this is Millington v Fox (1838) 40 E.R. 956. As Wadlow points out, by 1842 the term "passing off" was in use and the principles of the cause of action were defined by Lord Langdale ......
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... ... It may be said to have been established by Lord Cottenham in Millington v. Fox (1838) 3 My. & Cr. 338. He decided that it was not necessary to establish any intention to deceive on the part of an infringer against whom an injunction to restrain his use of a trade mark was sought ... 47 The right of property in a trade mark had special characteristics. One, which ... ...
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