The Gazette 1976

J UNE /J U LY

1976

GAZETTE

there was a comprehensive booklet of 30 pages containing photographs of men and women in various pos- itions during exercises. This Body Shaper was sold at £6 on which there was an estimated profit of £2.10. During 1975, a very successful mail order business was developed. In 1976, however, sev- eral other brands came on the mar- ket, including that of the defend- ants, which was sold at a much lower price; this was also an Ameri- can product called "Slimliner". The plaintiffs complain that the packag- ing and advertising of the Slimliner had been done so as to mislead or deceive purchasers, and to lead them to believe that they were purchasing the plaintiff's product, and detail their complaint The size of the Slimline box was the same as that of the Body Shaper. The defendants advertised exten- sively Slimliner on television, giving prominence to the size of the box. The American defendants employed an Irish advertising firm specifically to prepare the box and deal with the advertising, and, in so doing, pro- duced the plaintiff's box and book- let, and asked the Irish advertisers to imitate it. There is no doubt that the box produced for the defend- ants was in several respects very similar to that of the plaintiffs. The general principles of law are clear. A person selling a product in such a way as to mislead the public into believing that it is the product of another person is liable to that other person for injury to the good- will of the business. It is not nec- essary to produce evidence that any person was actually deceived, pro- vided that the goods are marketed in such a way that they are calcul- ated to deceive, nor is it necessary to establish an intention to deceive. In this case, the goods were un- doubtedly marketed in a way calcul- ated to deceive. In constructing their box, the defendants and their ad- vertisers overstepped the mark by including too many similarities to the plaintiff's box. Consequently the plaintiffs are entitled to an injunc- tionrestraining the defendants from advertising their product which in- cludes the matter complained of. As it is necessary to estimate the damages, the fact that there was other legitimate competition, and the plaintiffs themselves intended to introduce a cheaper model should be taken into account; accordingly a sum of £1,500 will be awarded. Grange Marketing Ltd. v M. & Q. Plastic Products Ltd. — McWilliam J. — unreported — 17th June, 1976.

LABOUR LAW Conditional order of attachment for picketing despite Court Order. A Conditional Order of attach- ment was granted by Mr. Justice Hamilton in the High Court, in Dublin, against a retired Co. Clare labourer who, it was claimed, had stamped on a court order served on him. Mr. Justice Hamilton held that there was a prima facia, case of gross contempt against Michael Dowd, of Killaloe. He directed that the order be served on the Commissioner of the Garda Siochana directing the defend- ant to be brought before the Court- The conditional order of attach- ment was granted on the application of Louis de Courcy Ltd., whose registered office is in Limerick. Last month the Court granted the Limerick company an injunction re- straining Mr. Dowd from picketing their premises at Glentworth Street and from publishing libellous alle- gations concerning the company in their practice as auctioneers and valuers. A solicitor's apprentice in an affidavit on behalf of D. J. O'Malley and Co., said that on Tuesday at 4 p.m. he approached Mr. Dowd at Glentworth Street and informed him he was serving High Court docu- ments on him- Mr. Dowd made no reply. The apprentice said he placed a copy of the High Court order be- tween Mr- Dowd's hands. At the time he was carrying a placard. Mr. Dowd, he said, allowed the copy of the order t 0 fall into the footpath and proceeded to stamp on it with his feet, destroying it, and walked up and down the footpath outside the company's offices. De Courcy v. Dowd - Hamilton J. - unreported - 1 December, 1976- Note — As Dowd would not sub- sequently undertake not to picket, the Order was made absolute, and he was imprisoned for contempt.

health grounds, was not fitted physically to perform his duties. The Garda himself must have appreciat- ed that he was off duty a lot, al- though in most cases the Judge con- sidered the Commissioner would ob- tain a medical report of a more comprehensive nature than the one before him in this case. Finally the Judge said it was dif- ficult to accept that there was a proper consideration of the case by the Commissioner at the proper time when, having given one ground for discharge in the order he made, his affidavit stated that the discharge was really made on a different ground. Counsel who represented Garda Hynes, said his client had not receiv- ed any pay or suspension allowance since September 24th. Mr. Justice McWilliam said the order of the Court was that the Com- missioner's order was null and void. This meant that Garda Hynes did not cease to be a recruit Garda and it appeared to him to follow from that that the Garda should be paid. But this matter was not the respon- sibility of the Court. He would give both parties liberty to apply to the Court. He granted costs to Garda Hynes and granted a stay of execution on the order of the court pending an appeal by the Commissioner. Hynes v. Garda Commissioner Garvey— High Court — McWil- liam J. — unreported — 19th Nov- ember 1976. PASSING OFF Injunction granted and £1,500 damages awarded to plaintiff because defendants sold their product in a box identical to that of the plaintiff. This case concerns the marketing of equipment consisting of light ropes held by or attached to the hands and feet, and passing over pulleys thus enabling the arms and legs and other parts of the body to be exercised. The plaintiffs were ap- pointed sole distributors in Ireland for one of the parts of this Ameri- can equipment called the Body Shaper, introduced to Ireland at the end of 1974. The product was ad- vertised in some newspapers, main- ly the "Sunday World". While orig- inally the equipment was imported, now it is made in Ireland. The equipment was sold in a box with the label "5 Minn*, Body Shaper Plan". Apart from he equipment,

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