On This Day, 7 February 1917

Birmingham Mail

Wednesday 7 February 1917

“CHOCAROONS” & “MACAROONS”

INTERESTING DECISION IN THE COURT OF APPEAL

In the Court of Appeal judgement was given yesterday in an appeal by Cadbury Bros., Ltd., of Bournville and Rowntree and Co., of York against a judgement of Mr. Justice Eve affirming an order of the registrar of trademarks. The order directed that respondents, Messrs. Williams, Limited, of Bootle should proceed with the registration of the word “Chocaroons” as a trade-mark for a sweetmeat they were selling on the market.

The Master of the Rolls said various objections were taken by the present appellants to the registration of the word, but the real ground relied upon was that if registered it was liable to cause confusion and inconvenience, and that it was sought to register the word with a view of preventing manufacturers making and selling an article the manufacture of which was open to anyone. The applicants some time ago, brought out a new sweetmeat made from chocolate, pounded coker-nut and other nut kernels, sugar, etc., which, though of the same character as chocolate macaroons, differed therefrom in general appearance and taste. The applicants described this as a new sweetmeat, and for this sweetmeat it was necessary to have a good trade-mark. Consequently they invented this word “Chocaroons” and they alleged that the word identified their goods and enabled the public easily to distinguish them from the goods of other competitors

The present appellants opposed registration contending that the word was not a good trade-mark within the definition of Section 3 of the Trade-marks Act, 1905, because they said it was not a mark “used or proposed to be used upon or in connection with the goods for the purpose of indicating that they were the goods of the proprietor of such trade-mark.” Mr. Justice Eve had held against appellants. He though that “Chocaroons” was an invented word, having no direct reference to the character or quality of the goods, and that its registration would not cause confusion or inconvenience to the trade or the public. The view he took of the evidence was that it did not establish that respondents intended to use the word “Chocaroons” otherwise than as indicating the source from which the article came. His Lordship admitted that on the authorities the present case was very near the line, but on the evidence he though, with great respect to the learned judge, that his decision could not stand, and the appeal against registration must be allowed. There would be no cost of appeal.