Page 317 - The_story_of_the_C._W._S._The_jubilee_history_of_the_cooperative_wholesale_society,_limited._1863-1913_(IA_storyofcwsjubill00redf) (1)_Neat

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The Action Fails.
distinguish between the economic systems of capitaHsm and
co-operation must be very common in the commercial world.
However, let us pass to the judgment. It was deUvered by
]Mr. Justice Joyce on the 13th of December, about five weeks after
the conclusion of the hearing. This was really a contest, said the
Judge, " between Messrs. Lever and Co. and the C.W.S." It was
not a passing off action in the ordinary sense. There was "no
allegation of direct or other misrepresentation or counterfeiting in
anj^wise the goods of the plaintiffs. , . . There were no patent
rights in question. . . . There has been no imitation of marks
or complaint of similarity in title or get-up," The defendants had
given proper instructions and, " upon the evidence I hold that
these instructions were given bona-fide, and were intended to
be carried out, and generally at least, if not always, were in fact
observed." The Judge found evidence of this in the small sales
by the Masbro' Society of "Lux" and "Monkey Brand" before
the " C.W.S. Soap Makes " and the " C.W.S. Parrot Soap " were
stocked; and in the fact that " not a single customer or purchaser
has been found to complain .... or to allege that there
has been any deception in any mstance." After commenting upon
"
the natural preference of the regular customers, if they were made
to understand," for soap " in the sale of which they were themselves
interested, inasmuch as they shared the profits," and after deahng
with the unfairness of the plaintiffs' handling of the trap orders,
the Judge continued:
The evidence of Sir William Lever, not liimself probably an unfair-minded
man, although, no doubt, keen in business, was really (I hope he ^vi\\ forgive me
for saying so) rather entertaining. He asserts that in the hurry of business,
with a crowd of customers waiting, say, on a busy Saturday evening, it would
be physically impossible for the shopman to give sufficient verbal explanations
when " Lux " or " Monkey Brand " was asked for. The inference stated, or
intended to be deduced, was that the defendants, unless they stock and sell
" Lux " and " Monkey Brand " must from time to time occasionally, by some
of their numerous servants, commit a fraud upon the plaintiffs. Sir William
Lever and Company, and, therefore, that the plaintiffs are entitled to an
injunction which will directly compel the defendants to take soap from Lever
and Company and to sell such soap in their shops. That, in mj^ opinion, is
the real ground of offence the plaintiffs entertain against the defendants,
namely, that the co-operative societies will make and sell their own soap and
other goods without dealing with the plaintiffs or private makers.
Finally, after referring to the undertaking wliicli had been offered,
Mr. Justice Joyce concluded that " there has not been any actual
fraud nor any intention to deceive on the part of the defendants."
249