1922 tinued to use the deceptive description after the danger of Judgment. using it had been brought to his notice. CAMERON, Proof of fraudulent intention may, however, materially assist a plaintiff in establishing probability of deception. [Kerly, 533.1 In my opinion, therefore, the conclusion to be derived from the decisions is that, so far as the words "auto wrecking" are concerned, the use of them in conjunction with an additional or introductory word would not, at any rate if those words were used by the defendant honestly and without fraud, as said by Cozens Hardy, M.R. in the Randall Case, supra, be ordinarily interfered with by the Court. There might, however, be circumstances justifying interference in some cases. The length of time, for instance during which the plaintiffs have used their trade name may be an element to be considered, as indicated by Swinfen Eady, J., in the Facsimile Case, hereinafter referred to. The question before us is, is the public likely to be deceived by the words adopted by the defendant as his trade name into believing the defendant's business to be that of the plaintiffs? That question involves the further crucial question whether the use of the word "Main" by the defendant with the other words is likely to lead the public to believe they are dealing with the plaintiffs. It is stated in Kerly on Trade Marks, pp. 550-1: If the name of the defendant company is one which is calculated to lead to the belief that it is an agency, branch or department of the plaintiff company, an injunction will be granted, citing Lloyd's v. Lloyd's (Southampton) Ltd., 29 R.P.C. 433, 28 T.L.R. 338, where an injunction was granted to restrain the defendants carrying on business under their name or any other name calculated to induce the belief that the defendants' business was the business, or an agency, branch or department of the business, of the plaintiffs Lloyd's. A somewhat similar case to this is to be found in Erving v. Buttercup Margarine Co. [1917] 2 Ch. 1, 86 LJ. Ch. 441. In Facsimile Letter Printing Co. v. Facsimile Typewriting Co., 29 R.P.C. 557, it was established on the hearing that confusion had arisen owing to the similarity of the names and that the defendants having taken the first and leading word in the plaintiffs' name, the plaintiffs had made out a sufficient case to entitle them to an injunction until the trial. Swinfen Eady, J. says: "Fraud or dishonesty on the part of the Defendant is not a necessary ingredient to the Plaintiffs succeeding." He cites Lord Shand's statement in North Cheshire & Manchester Brewery Co. Ltd. v. Manchester Brewery Co., Ltd., [1899] A.C. 83, at p. 88, 68 L.J. Ch. 74: "I further agree that it is not necessary in a case of this kind that an improper motive or a fraudulent intention should be made out. Here the simple question to be decided is, assuming bona fides on the part of the appellants, whether or not the use of this particular name is calculated to injure another firm which had been using that same name, I believe for a period of about eight years." In the present case it is six years. "Whether the question arises under statute"-that would be The Companies Act-"or under the common law, the issue which the Court or this House has to decide appears to me to be the same. Was the taking of the name of the 'Manchester Brewery Company Ltd.' calculated to induce the belief amongst the public or the trade that the business which was carried on by the respondents is now the business carried on by the new firm?" That sums up the whole law, and that is the issue which I have to decide. Swinfen Eady, J. distinguished the Aerators Case and the Vacuum Case because in those cases the first or leading style or title was not taken, as was the word "Facsimile" in the case before him. He held the plaintiffs had made out a sufficient case to entitle them to an injunction until the trial and sets forth his reasons, on consideration of the comparative convenience and inconvenience, for restraining the defendants, which I think are applicable to the case at bar. Charges of fraudulent intention on the part of the defendant are specifically made in the statement of claim as before set forth and in the affidavits filed in support of the motion for injunction. In reply to these the defendant filed an affidavit in which he denies that he had commenced business for the purpose of deceiving the public or anyone with believing that the business carried on by me is either the Main branch or any branch or in any way connected with the business carried on by the plaintiffs. And he says: That the only reason I use the words "Main Auto Wrecking" in my business is for the purpose of disclosing to the public three facts: (a) That I am doing business on Main street; 35-M.L.R. 1922 Judgment. CAMERON, J.A. 1922 (b) Judgment. That I am engaged in the business known as “wrecking"; (c) That I am engaged in the wrecking of automobiles. Now, the word "Main" can plainly bear the construction that, used in connection with the other words, it indicates or connotes the defendant's business as the main office or establishment of which the plaintiffs' business is a branch or agency or department. This is so obvious that I am unable to accept the defendant's statement that the only reason why he uses the words "Main' Auto Wrecking" in his trade name is because he is doing business on "Main Street." It may be one reason but it is not the whole reason or all the reasons. Nor can it be correct that the fact that he is engaged in the business of "wrecking" automobiles covers all his other reasons for the use of the words "Main Auto Wrecking." It seems to me impossible, on the evidence before the Court, to concede that the defendant is disclosing the whole truth when he makes these assertions and the fact that he makes them is, in itself, indicative of fraudulent intent. And proof of fraudulent intent materially assists in establishing probability of deception. I am of the opinion that the use of the word "Main" in the defendant's trade name, taken in connection with the user by the plaintiffs of the words "Auto Wrecking Company" as their trade name and the express determination of the defendant to use the trade name "Main Auto Wrecking Company" after the plaintiffs' protest against such use and with the other facts and circumstances set out in the pleadings and affidavits point strongly to the conclusion that there was and is on the part of the defendant an intention to deceive the public as alleged by the plaintiffs. If the only words used were "Auto Wrecking Company," such an intent to deceive on the part of the defendant would not necessarily be conclusive, or, it may be, even material, against him. But that consideration arises here where the defendant's adoption of the words "Auto Wrecking Company" is aggravated by the use of the word "Main," which is obviously equivocal and misleading, and it is still further accentuated by the defendant's account of his reason for using that word in 1922 CAMERON, J.A. his affidavit, an explanation which is, to say the least, disingenuous and fails to carry conviction as to its candour and hon-. Judgment. esty. This added or prefixed word "Main" does not differentiate or distinguish the other words, as was the case with the added word in Randall v. Bradley, supra, where it was held that the word "Anglo-American" as compared with "American" distinguished the defendant's business from that of the plaintiff, and the same can be said of the added words in the Vacuum Cleaner and Electromobile Cases. I refer to the remarks of Parker, J. in the former case at p. 655, and of Warrington, J. in the latter case at p. 692, Ibid. It would be quite different if the added word were "Dominion," "Canadian," "City," or some such word. The addition of the word "New" was accepted by the plaintiffs in Hopton Wood Stone Firms Ltd. v. Gething, 27 R.P.C. 625. But in this case the prefixed word not only does not differentiate or distinguish the defendant's trade name from that of the plaintiffs but it identifies and confuses the latter with the former. And, further, it must tend to create, amongst the interested public, the impression that the plaintiffs' business is an inferior department of and subordinated to that of the defendant. These considerations are the crucial point of this case and distinguish it from other cases and, to my mind, are decisive of this appeal. The decision of the House of Lords in the Manchester Brewery Case, supra, resting on the ground that the use of the name by the defendants would amount to a representation that the new company was an amalgamation of the plaintiff's business, is in point. In view of the above considerations and of the nature of the business, I can lay no stress on the contention that these two businesses, separated by the distance from Fort street near Portage avenue to that part of Main street not far north of the subway, do not or will not compete. Such a business, if of any extent, invites and includes customers from the whole city and its vicinity. As Lord Halsbury says, in the Electromobile Case, "all these cases depend on the question of fact." In my judgment, the inference to be drawn from the evidence presented that the 1922 CAMERON, J.A. defendant adopted this particular collocation of words as a Judgment. trade name for the purpose of deceiving the public into believing his business had a connection with the plaintiffs' business and that that connection was such as to make the plaintiff's business subordinate to that of the defendant, is sufficiently strong to entitle the plaintiffs to an injunction until the hearing. A slight modification by the defendant of the words used by him would relieve him from that imputation and the fact that he stubbornly refused to assent to any such modification confirms the unfavourable view I am inclined to take of his acts and conduct. I think the appeal should be dismissed and the injunction. continued until the hearing. The costs of this appeal will be costs to the successful party in the action. FULLERTON, J.A. (dissenting)—The question for decision in this appeal is the right of the plaintiffs to an interlocutory injunction restraining the defendant from carrying on business under the name of "Main Auto Wrecking Company." The plaintiffs have been carrying on business under the name of "Auto Wrecking Company" since May, 1919. The defendant has not actually commenced business but intends doing so. Counsel for the respondent very properly admitted that the plaintiffs had acquired no right to the exclusive use of the words "Auto Wrecking." These words are descriptive of the business of purchasing old or damaged automobiles, taking them down and disposing of the saleable parts. In an affidavit of Arkin, one of the plaintiffs, he states that he believes that the defendant in commencing and carrying on business under the said name "Main Auto Wrecking Company," has done so for the purpose of deceiving the public and customers of the plaintiffs into the belief that the business carried on by him is either the main office or a branch office or is in some way connected with the business carried on by the plaintiffs or for the purpose of fraudulently acquiring some of the business of the plaintiffs. The defendant denies this and says that his reason for the use of the words is to disclose to the public the fact that he is engaged in the business of auto wrecking and that his place of business is on Main street. We cannot therefore, for the pur |