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Colbeam Palmer V. Stock Affiliates Notes

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COLBEAM PALMER V. STOCK AFFILIATES FACTS This action is the result of a dispute about the use of the term "Craft Master" as a trade name for articles described as painting sets. The plaintiff, a company incorporated in the United Kingdom, was registered under the Australian Trade Marks Act 1955-1958 as the proprietor of the word trade mark craftmaster, in respect of painting sets included in class 16, for a period of seven years from 11th April 1961. It appears that at some time early in the 1950s an American company, then known as Palmer Pann Corporation, made and sold painting sets in the United States under the name "Craft Master". The American company Palmer Pann Corporation later changed its name to Craft Master Corporation. It seems that at one stage before doing so it had a business alliance or association with the plaintiff Colbeam Palmer Ltd. in England, which was apparently an offshoot of it. However that may have been, in or about 1954 the American and English companies decided to go their separate ways each selling its painting sets under the name "Craft Master". They agreed to divide the world between them each keeping out of the territory of the other. Broadly speaking the Eastern Hemisphere was to be the English company's territory, the Western Hemisphere that of the American company. Australia and New Zealand were apparently left as a kind of no-man's land where each company might make forays. The defendant is a company incorporated in New South Wales. Its main business is as an importer and wholesale supplier of a variety of goods to retailers. The company seems to be controlled by its founder, Mr. J. A. Winstock. He has been its managing director for thirty years. In 1960 or thereabouts he entered into negotiations with the American company with a view to his company becoming the selling agent---in the inexact commercial sense of that expression---of its Craft Master painting sets in Australia. In the result the defendant company became a regular importer of the American company's goods. These it sold to various retail shops in Sydney. Mr. Winstock took this advice to mean that as between the American company and the plaintiff there was no agreement that either must keep out of Australia, that each could there use the name Craft Master. He did not know that in 1961 the plaintiff had registered this name as its trade mark in Australia. His company therefore continued trading in the American goods bearing the name Craft Master as the American company had advised him to do. And the plaintiff company took no steps to make known to the defendant or to the trade generally that it had the name Craftmaster as its trade mark or to assert any rights in it

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