The Gazette 1976

GAZETTE

UNE

1976

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,

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

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.