The Times (London).
17 December 1887
Before Mr. Justice Kay
WILLIAMS V HODGE AND CO.
This was a motion on behalf of the plaintiff, Dr. John Williams, the well known obstetric physician, of 11 Queen Anne street, for an injunction to restrain the defendants, Messrs. Hodge & Co., surgical instrument makers, of Oxford street, from using, min their trade catalogue, the name of the plaintiff in connexion with a certain instrument of a simple character commonly used in obstetric operations, so as to lead the public to believe that it was the plaintiff's invention. On the use of his name coming to the plaintiff's knowledge he remonstrated with the defendants, but they refused to expunge his name from their catalogue. The defendants did not appear to the motion.
Mr. Renshaw, Q.C. (with whom was Mr. Rolls Warrington), read an affidavit by the plaintiff to the effect that it was contrary to the etiquette of the medical profession for a practitioner to advertise himself or to hold himself out to the public as an inventor, and that if he did so he injured himself in the eyes of his fellow practitioners; and that this attempt to connect the plaintiff's name with an instrument of so simple a character would ten not only to injure him, but also to render him an object of ridicule in the profession. The plaintiff was supported by an affidavit by Sir William Jenner to the same effect.
Mr. Justice Kay - This case seems like "Clark V Freeman" (11 Beav., 112), where the Court refused to grant an injunction to prevent a chemist from selling a pill under a false and colourable representation that it was a medicine of the plaintiff, the eminent physician, Sir James Clark. That decision was no doubt a surprise to the profession; but has it ever been overruled?
Mr. Renshaw - It has certainly not been accepted as sound. The defendants' untrue representations are calculated to injure the plaintiff in his business, and thus the case falls within "Thorley's Cattle Food Company v Massam" and that class of cases.
Mr. Justice Kay - That is a question for the trial; I cannot decide it on an interlocutory application. This is a simple instrument and perfectly harmless; but in the "Clark v Freeman" the pill advertised by the defendant was one of a dangerous kind, which the eminent physician who was the plaintiff would never have thought of prescribing.
Mr. Renshaw - That case is not considered to be law now.
Mr. Justice Kay - That is a question for the trial. Supposing the name of some eminent surgeon were attached to a particular instrument, every one would know that the name was not so used by that surgeon, but by some unscrupulous manufacturer.
Mr. Renshaw - I submit that in such a case the wrongful use of the name ought to be restrained. It is, in fact, libellous. In "Hill v Hart Davies" your Lordship granted an injunction to restrain a libel likely to injure a friendly society.
Mr. Justice Kay, in delivering judgement, said that in this case there seemed to have been, according to the evidence, a most unwarrantable use of the name of a gentleman of great eminence in the medical profession by associating it with a particular instrument. That gentleman now asked for an injunction that use of his name. Had the matter been res nova his Lordship should have said that he was certainly entitled to an injunction. A gentleman in the plaintiff's position might reasonably ask, "Why should my name be taken in vain by an unscrupulous manufacturer of surgical instruments?" The defendant had no more right to use the name of this eminent medical man than to take his purse - so his Lordship should have said upon his own unassisted judgement if the case had come before him for decision for the first time. But there was the case of "Clark v Freeman," in which the name of Sir James Clark, one of the most eminent physicians of his day, was used by the defendant, a chemist, in connexion with a pill which Sir James had never heard of, and which he would never have dreamt of telling his patients to take. There Lord Langdale refused to grant the injunction asked for. As his Lordship had said, that decision was rather a surprising one, and one which he had always thought was not sufficiently considered; but it was a decision from which he did not feel himself at liberty to depart, and from which, upon an interlocutory application such as the present, he had no right to depart. His Lordship was not at present aware of any reported case in which "Clark v Freeman" had been considered, or of any case overruling it. Accordingly, the question raised by this motion must stand over until the trial of the action, if the defendants were foolish enough to allow it to be brought on. His Lordship thought it right to add that he could not conceive that any one in the world would suppose this gentleman's professional name would be in the least damaged by this most unscrupulous use of it.