304 / 322
GAZETTE
JANUARY/ FEBRUARY 1984
(1) that no power of sale had been
shown to subsist because no reason
for the dealy of 33 years in the
exercise of such power by the
personal representative had been
given, relying on the decision in
In
Re Molyneux and White \3
L.R.I. 382
that a lapse of at least 20 years from
the date of death creates a
presumption that all the Testator's
debts have been paid and puts the
purchaser on enquiry as to the
purpose of the sale;
(2) that the delay was such that an
assent to the establishment of the
Will trust should be inferred.
Against this, the Vendor argued that an
Executor is always entitled to sell for the
purpose of distribution of assets amongst
beneficiaries, relying on
In Re Norwood
and Blake's Contract
[1917] 11.R.472. He
further submitted that a purchaser would
in any event be protected by the
provisions of section 51 of the Succession
Act, 1965. This section provides that a
purchaser from personal representatives
of any property, forming part of the
estate of a deceased person, shall be
entitled to hold that property freed and
discharged from any debts and liabilities
of the deceased, except such as are
charged other than by the Will, and from
all claims of persons entitled to any share
of the estate.
HELD:
(1) It was not the executor's duty to sell
the property in order to distribute
the assets amongst the beneficiaries;
rather, his duty was to transfer the
assets to the will trustee (albeit
himself) and in that capacity to
distribute the assets. Accordingly,
there was no ground for the exercise
of a power of sale by the personal
representatives on that basis.
(2) There is nothing in section 51 of the
Succession Act, 1965, to contradict
the usual rule that a purchaser is
fixed with constructive notice or
suggest that he is never to be put
upon enquiry and thus nothing to
negative the rule in
Molyneux's
case.
This means that the Vendor, selling
as Personal Representative, must
satisfy the Purchaser, who is put
upon enquiry, that he has the power
to sell as such. Having regard both to
the delay since the death of the
Testatrix and to the resume of facts
contained in the letter dated 11 June,
1980, it seems reasonable to infer
that an assent was given to the
establishment of the Will trust.
Moreover, even if this inference is
wrong, there is sufficient doubt to
make it unreasonable to require the
purchaser to accept the title.
Finbarr Crowley
-v-
John Flynn - High
Court (per Barron, J.), 13 May, 1983 -
unreported.
Sarah Cox
PATENTS — Application for extension of
Letters Patent, Section 27 Patents Act,
1964.
The patent related to two drugs used in
veterinary medicine for the treatment of
parasitic worm infestations in (i) cattle, .
sheep, pigs and (ii) horses. Section 27 of
the Patents Act, 1964, provides that the
term of a patent may be extended if it can
be demonstrated that the patentee had
been inadequately remunerated by his
patent. The Petitioners, the Patentees,
alleged that the lack of remuneration in
the case of one drug (Parbendazole), was
partly due to the suspicion that the drug
was teratogenic and partly due to the
failure of the regulatory authorities in the
United Kingdom (there being no separate
regulatory authority in this country) to
approve its use in lactating cattle. In the
case of the other drug (Oxibendazole) the
Petitioners said that the lack of
remuneration was due to the "slow
realisation of the full potential of the
invention and to attendant delays in
getting regulatory approval for it".
HELD: The fact that the patentee fails
to make a profit from his patent is not
itself a reason for extending its life and
that Section 27 s.s.5 provides that the
Court must have regard to the nature and
merits of the inventions in relation to the
public, to the profits made by the
patentee as such and to all the circum-
stances of the case. It is necessary to
demonstrate, as grounds for an
extension, that the invention is one of
more than ordinary utility, that is has not
been adequately remunerated, and that
the absence of remuneration is not due to
any fault on the part of the patentee
referring to the English case of
Flemings
Patent
36 RPc 55,70. The onus of proving
same is on the Petitioner.
Having looked at the reasons for the
disappointing levels of sales in the case of
parbendazole, the losses were directly
attributable to the Petitioner's own
actions and consequently, their inability
to sell the drug in Ireland for the
treatment of dairy cattle arising from the
failure of the Veterinary Products
Committee ("the VPC") to licence its use
for that purpose. The Petitioners had
failed to show that the VPC had acted
with excessive caution and therefore
unreasonably, in limiting the Petitioners
licence in the way it did. Another relevant
factor in explaining lack of sales in the
last three years of life of the patent was
the introduction by the Petitioners to the
Irish market of an improved drug which
could be administered to dairy cattle. In
the case of the other drug, Oxibendazole,
on the evidence the major contributing
factors in the lack of remuneration was
due to the Petitioners' own decisions not
to develop it until late in the life of the
patent and that it too was superseded by a
drug introduced by the Petitioners. The
result of tests carried out by a patentee
late in the life of a patent which establish
unexpected qualities cannot be relied
upon to support a claim of "inadequate
remuneration". The application for
extension was therefore turned down.
In the matter of the Patents Act 1964 and in
the matter of Letters Patent No. 30666
dated 19 December. 1966, of Smithkline
Beckman Corporationand in the matter of
a petition under Section 27 of the Patents
Act 1964 for the extension of term of the
said Patent - High Court (per Costello J.),
8 March, 1983 - unreported.
Emer Crowley
TORTS — PASSING OFF— Sports
goods — distinctive mark or get up —
stripes of identical width and colour —
whether Respondents use of three coloured
stripes on its goods amounted to passing
off.
The Appelants ("Adidas") began
manufacturing sportswear in Germany
about 1948 and now manufacture and sell
internationally all kinds of sports
equipment. Prior to 1967, it confined its
activities to sports footwear which was
manufactured and marketed with three
diagonal stripes on the instep and outer
side of each boot or shoe. That three-
stripe design became well known through
extensive international advertising and
through television coverage of interna-
tional sporting events in which the
competitors used Adidas footwear. From
the late 1960's small quantities of Adidas
footwear were imported into Ireland.
Since 1967, Adidas has manufactured
and sold sportswear generally including
shorts, singlets, track suits, anoraks, most
of which carried the design of three
coloured stripes, straight (not diagonal)
down the side of arms and legs of the
goods where that was possible, and as in
the case of Adidas footwear, the three
stripe design became well known. Adidas
acquired a world-wide recognition of the
exclusiveness and distinctiveness of their
design and styling. From 1971 Adidas
sportswear was imported into Ireland, in
1975 it registered a trade mark consisting
of a trefoil with three horizontal stripes
(which mark was in no way associated
with stripes on garments) and in 1976
Adidas commenced manufacturing
goods in Ireland.
The Respondents ("O'Neill"), an Irish
company, was formed in 1918 and
commenced the manufacture of
footballs, football shorts and jersies. In
1965, O'Neill began putting stripes on its
textile products, and the number of
stripes varied from one to three,
depending on the order. In 1967, O'Neill
began the manufacture of track suits,
initially with a varying number of stripes
and by 1976 O'Neill products generally
had three stripes down the side of the legs
and arms of jerseys shorts and track suits
and their products were extensively used
by supporters of the three football codes
in Ireland.
Adidas claimed in the proceedings that
II