An injunction will not be granted against third parties, though they may be ordered to pay costs. Where a plaintiff finds, pending the action, that he has a direct claim against a third party, he ought to apply to amend by adding him as co-defendant; but this cannot be done after trial and for the purposes of an appeal (t). Where the secretary of the defendant company had taken no part in the acts of infringement, but was made a defendant. and appeared and put the fact of infringement in issue, an injunction was granted against him with costs, but no damages (u). A defendant who by surprise or mistake consented to an injunction will be allowed to withdraw such consent; but the subsequent discovery of facts on which he could found a defence is not a sufficient ground for withdrawal (x). The injunction usually restrains the defendant, his servants and agents, from infringing; such being the case, the injunction may be useful though the defendant be a foreigner (y). Chap. VII. obedience. A patentee's remedy for breach of an injunction is a motion Enforcing to commit. It is not necessary that the order should have been served, but knowledge that the injunction has been. granted must be brought home to the defendant. If there is a breach before there is time to serve the order, the Court will inquire whether the defendant knew of it, and he will not be allowed to escape by any subterfuge. If he was in Court, he will not be allowed to say he did not hear it; if just outside the Court, he will not be heard to say he did not know of it (z). But if the plaintiff by his long delay in getting the order drawn up or otherwise gives the defendant reason to think that he does not intend to enforce the injunction, that is an answer to a motion to commit (a). Committal will not be ordered lightly; the case must be (t) Edison v. Holland, 6 R. P. C. p. 286. (u) Welsbach Incandescent Co. v. Daylight Co., 16 R. P. C. 344. (x) Elsas v. Williams, 1 Times Rep. 144. (y) Badische, &c. v. Johnson, (2) United Telephone Co. v. Dale, Chap. VII. Where defendant submits. strictly made out on the affidavits (b); and the Court will not encourage motions to commit where no real case for committal can be made out, and all the mover wants is an apology and costs (c). Defendants who disobey an injunction render themselves liable to a motion to commit, even though they act in the bonâ fide belief that they are not guilty of any infringement; but where they are clearly innocent the Court usually directs that attachment should issue but not be enforced if the defendants deliver up infringing articles and pay costs (d). Costs. If the defendant offers to submit to an injunction, or promises no longer to infringe, it will depend upon circumstances whether he will be ordered to pay the costs incurred subsequently to his submission. The real point is whether the plaintiff must go on with his proceedings, or whether he is already sufficiently protected by the surrender of his opponent. This is practically the same as whether the acts of the defendant have disentitled him to an injunction (e). The plaintiff is generally entitled to go on, if there be any doubt, at any rate until he has obtained his injunction (ƒ), but the Court will use its discretion on the facts of each case. Where the plaintiff comes to enforce a legal right, and there has been no misconduct on his part, the Court will not deprive the plaintiff of his costs (g). But this does not mean that every innocent purchaser of a small quantity of infringing goods incurs a liability to pay the costs of an action to restrain the infringement of the patent (h). The case is, however, different where the quantity of goods purchased is large, that is, large (b) Dick v. Haslam, 8 R. P. C. 196. (c) Plating Co. v. Farquharson, 17 C. D. 49. (d) Lyon v. Goddard, 11 R. P. C. 115. (e) Upmann v. Elkan, 7 Ch. 130; Proctor v. Bayley, 42 C. D. 390. (f) Colburn v. Simms, 2 Ha. 543; Nunn v. D'Albuquerque, 34 Beav. 595. (g) Cooper v. Whittingham, 15 C. D. 501. (h) American Tobacco Co. v. Guest, 1 Ch. 630. enough to justify the plaintiffs in suspecting that the goods were intended for distribution and not for personal use (i). As a general rule a plaintiff is entitled to issue his writ without notice to the defendant, and after that the only offer which the defendant can properly make is to submit to an injunction and to pay the costs (k). At the same time a plaintiff must not act unreasonably, and if he refuses a reasonable offer, although an injunction is granted, no costs may be given (1). Where the defendant did not dispute the patent, had never used the machine (which he had purchased and which infringed the plaintiff's patent), and did not intend to use it, and undertook not to use it, and the plaintiff would not accept this or any other undertaking, on the undertaking being given to the Court, the motion for an injunction was dismissed with costs (m). Stay of Execution. The Court has a discretion to stay proceedings pending an appeal, but the general rule is that in the case of an injunction a stay will not be granted (n). But each case depends largely upon its own special circumstances. If a stay is granted as to the injunction, the defendant will generally be put on terms to keep an account and to appeal promptly (o). If the defendant is engaged in executing orders for the article complained of, and the question of infringement is one of difficulty and doubt, the Court is more disposed to stay the injunction pending appeal (p). But where defendants, after warning that they were infringing, accepted orders and proceeded to execute them, with their eyes open, the Court refused a stay although (1) Upmann v. Forester, 24 C. D. 231. (k) Wittmann v. Oppenheim, 27 C. D. 260. (1) Nunn v. D'Albuquerque, 34 Beav. 595. (m) Lyon v. Newcastle Corporation, 11 R. P. C. 218; and see Jenkins v. Hope, 13 R. P. C. 57. (n) Otto v. Steel, 3 R. P. C. 121; Proctor v. Bennis, 4 R. P. C. p. 363. (0) Kaye v. Chubb, 4 R. P. C. 23; National Opalite Syndicate v. Ceralite Syndicate, 13 R. P. C. p. 658. (p) Duckets v. Whitehead, 12 R. P. C. p. 191. Chap. VII. K.I. 18 Chap. VII. the orders were for public authorities, and it would have been a convenience to the public to grant a stay (q). An injunction has, however, been suspended on the ground of public convenience (r). (1) Lyon v. Goddard, 10 R. P. C. 348. (r) Hopkinson v. St. James' Co., 10 R. P. C. p. 62. CHAPTER VIII. INJUNCTIONS AGAINST THE INFRINGEMENT OF COPYRIGHT. SECTION I.-PRINCIPLES ON WHICH THE COURT RESTRAINS THE INFRINGEMENT OF COPYRIGHT. Sect. 1. THE jurisdiction of the Court in restraining by interlocutory Chap. VIII. injunction the violation of copyright is in aid of the legal right, and is founded upon the necessity of protecting the property from irreparable damage pending the trial of the right (a). The Court proceeds on the assumption that the person who makes the application has the right which he asserts, but needs the aid of the Court for the purpose of protecting his property from damage pending the trial of the right (b). He is not required to make out a clear legal title. All that the Court requires is that a case may be made out presenting a fair prima facie title, whether legal or equitable, or a clear colour of title with assertion of right (c). An equitable interest, limited in point of time or extent, is sufficient (d). But a mere agent to sell has not such a real interest in a work as will entitle him to relief (e). affidavits. The statement of claim may be in the form given in Pleading and Appendix C. sect. VI. (f). If the author of the book is himself the plaintiff, he should allege in his statement of claim, or the affidavit accompanying it, his title by authorship. |