"Trade Mark—Colourable imitation—Fraud.—A trade mark had been adopted and widely published by a company of brewers, and was well known to the public—Circumstances in which held, that another trade mark, printed and used by a retail dealer, was only a colourable imitation of the former, for the purpose of misleading, and calculated to mislead, the public, and interdict granted against its farther use.
The petitioners are brewers in Burton-upon-Trent, and manufacturers of the ales known as "Bass & Co.'s East India Pale Ale," or "Bass & Co.'s Pale Ale," and this petition was presented to the Sheriff of Renfrewshire against Reid, who is a spirit dealer in Neilston, complaining of an infringement of their distinctive trade mark by him, and for interdict. The record was made up by condescendence and defences. The condescendence set forth that the label adopted by the petitioners was an oval label, having a pink centre, tracing a triangle or pyramid which had been formerly used on their casks of pale ale, to distinguish it from another ale also manufactured by them, called simply "Burton Ale," which pyramid was coloured red, with the words " Trade mark" in small letters printed across it in black, and the mark was minutely described at length. Intimation of the adoption of this mark was given in a circular to all tho petitioners' agents, accompanied by a fac simile of the label. It was farther set forth in the petition, that it was the practice of the petitioners and that of their agents to supply each retail dealer or bottler who purchased a cask or casks of their ale with such a number of the labels as would be requisite for marking the number of bottles of ale which the cask is capable of filling, and to some of their customers the petitioners printed on the lower part of the label a statement that the ale was bottled by them, giving their name and place of business. That it had been ascertained that imitation labels, being fac similes, or at least bearing a close resemblance to those of the petitioners, had been printed and used, thereby damaging and defrauding the petitioners and the public. That these labels, though varying in some minute particulars, had been designedly formed to resemble the petitioners' labels, to enable the parties using them to pass off other ale on the public as the ale of the petitioners, although an accurate and close observer might detect the labels as not those of the petitioners. That the respondent had been in the practice of affixing the petitioners' labels, or a label being a close imitation of it, upon bottles containing ale not brewed by the petitioners, one of which imitation labels, with the words "Bars & Co.'s Pale Ale, bottled by David Reid, Neilston," printed or engraved on it, was produced. That there was no real or bona fide company of brewers carrying on business under the firm of "Bars & Co.," and that name had been put upon the label for the purpose of deception. That on discovering the use of the labels an interdict had been obtained, but in order to avoid that interdict, the respondent had prepared and used another label, which was a close imitation, 'with only colourable differences from those of the petitioners, and was meant and calculated to lead to the purchase by the public of other ales sold by the respondent as the petitioners' ale; that the respondent had, by the useof the petitioners' labels, or of imitation labels, been selling large quantities of other and inferior ale, represented by him to be ale manufactured by the petitioners, and had thereby effected a much larger sale and obtained higher prices for the ale sold by him than he could have otherwise done, to the loss, prejudice, and damage of the petitioners; and that the respondent bad printed, or procured some one to print, the labels so used by him."
"Scottish law journal and Sheriff Court record, vol. 3", 1861, pages 119 - 120.
Why were trade marks so important? And how could someone hope that customers might mistake Bars for Bass? Simple:
It may be very true that when set side by side, the pursuers' label and that complained of are easily distinguishable; but supposing the defender's windows filled with bottles labelled in the way complained of, can it be doubted that ordinary, and especially illiterate observers, would at once conclude that their contents were the well known "Bass's Beer."
"Scottish law journal and Sheriff Court record, vol. 3", 1861, page 121.
Makes sense, doesn't it? Many couldn't read. They'd recognise the label rather than read what was written on it.
And just because I can't resist, the article contains further confirmation that Pale Ale and Burton Ale were not the same thing. The triangle had originally been a mark on their casks to indicate that they contained Pale Ale and not Burton Ale.