Flogging cheap knock offs as the real thing is nothing new. In the second half of the 19th century Bass was plagued by imitations of its Pale Ale.
The following text is the evidence given by Bass to a parliamentary select committee preparing the Trade Mark Bill. In was very much in Bass's interest to get protection for their Trade Mark, the red triangle. After the bill had become law, Bass's red treiangle was duly registered as Trade Mark number 1.
Mr. Thomas Coopee Coxon, called in ; and Examined.
Mr. 2480. Mr. Moffatt.'] You are, I believe, manager in London for the firm of Bass & Company, ~ brewers, of Burton ?—Yes.
2481. Who are very extensively engaged in the manufacture of what is called Bass's pale ale ? —Yes.
2482. Do you use a trade mark in vending that ale ?—Yes (handing in the same).
2483. How long have you used that trade mark ?—We have used it for eight years.
2484. Have you found that other people have adopted a similar trade mark ?—We have found that it has been frequently imitated.
2485. And with the object, as you suppose, that their beer shall pass off as the genuine manufacture of Bass & Company, of Burton ?—No doubt,
2486. Is it your impression that that imitation has been prejudicial to your interests as a manufacturer ?—Very prejudicial.
2487. Can you produce to the Committee the imitations of the label, that they may judge whether the imitation is likely to mislead the public?—Yes (handing in some specimens).
2488. Chairman.'} Are all these imitations ?— Yes, all but one; one is genuine.
2489. How do you know that that (pointing fo the same) is a forgery ?—That label was sent to us from New Orleans, and this is a letter that we have received from New Orleans: " We learned a few days since that a spurious Bass & Co.'s ale, purporting to be of your bottling, was in the market, and we hasten to advise you of the result of our investigations in relation thereto, viz., some three weeks since a German house of respectability in this city received a consignment of this ale from Bremen, which they have now on hand, with the exception of a few casks which they have sold to their German friends for private use; they have sold it, not for Bass's ale, but for what it really is, Bremen beer; they say they had never seen the genuine Bass label, and were not aware of the nature of the fraud which had been perpetrated until advised of it by us; they will not sell any more of the ale, and they have given us the name of the party who is responsible for the fraud and forgery, viz., H. Deetzen, a brewer and bottler of Bremen, Germany. We enclose one of the counterfeit labels, which you will observe is a very clever imitation, and well calculated to deceive even those who are familiar with the genuine. The omission of the word 'by' after export will enable those who are advised of it to detect it readily. You will also observe, on scrutinising closely, the letters'B'and'S' on the margin of the inner circle, opposite the lower corners of the triangle, which are not in the true label. We hope you will be able to protect your rights, and those of Messrs. Bass & Co. in this matter, and punish the perpetrator of the forgery as he deserves." The others were forged at Cadiz.
2490. Mr. Moffatt.] Is this fraudulent use of Bass & Company's laUel generally practised wherever Bass's beer is known ?—It is very general.
2491. Have you met with any cases of a similar kind in other parts of the world ?—Yes. I have one label here that was forged in Paris; another that was forged in Dublin; another at Glasgow; and another at Liverpool.
2492. Are all of them equally clever imitations of your trade mark label ?—Some are as good as those I have handed in, and others are not.
2493. Mr. Alderman Copeland.] Do Messrs Hibbert deal with you ?—Yes. I have their letter here; it was Mr. Hibbert who sent me that label.
2494. Mr. Moffatt.] Do you know where those labels are made ?—That label (pointing to the same) was made at Bremen.
2495. Are they generally made in this country or abroad ?—We suffer more in this country than anywhere else.
2496. Mr. Crum Ewing.] Do you mean by other brewers using them ?—It is by the bottlers principally, who buy cheap ale and vend it as ours.
2497. Mr. Moffatt.] And put your name and mark on the bottles ?—Yes ; we suffer very much by their mixing genuine ale with spurious ale ; and from their falling the bottles on which the genuine label is pasted.
2498. Have you any positive information as to how you suffer by the mixing of your beer with beer of an inferior quality ?—We know by analysis that it is mixed.
2499. Can you trace out who are the mixers ? —We have at present very little or no protection by the law ; we consider that we have none ourselves, directly.
2500. But you are perfectly certain that your beer is very much mixed with beer of an inferior quality and then sold to the public as Bass's ?— It is done every day.
2501. And you seek, I suppose, for some protection in reference, first, to your own interests, and secondly, the interests of the public?— Exactly.
2502. Mr. Alderman Copeland^] Has your firm ever taken any proceedings to stop this ?—We have obtained many injunctions.
2503. Have they not been very costly ?— Yes; and we failed in one case, which cost us about 500 /. or 6001.
2504. Chairman.'] Why did you fail ?—I suppose, because we could not prove our case; we had not the least doubt that the fraud was committed, but we could not bring it home to the party.
2505. Mr. Maffatt.~\ Could you not bring home the use of a fraudulent label ?—I forget the particulars of the case.
2506. Have you met with some cases of forgery in any place beside at Bremen and in Paris?— Yes; we have had information on several occasions that labels are sold in Melbourne; we have also received a letter from a person in Melbourne, stating that one of our casks was taken to a foundry to have an imitation of our brand made.
2507. Do you believe that that species of misrepresentation is frequently resorted to ; branding your name upon casks ?—Not frequently.
2508. The wrong you mainly complain of, is the imitation of your label or trade mark on bottled beer?—Yes.
2509. It is your belief that that is adopted wherever Bass's beer is known to have any extensive consumption ?—Yes.
2510. And in this country also to a very great extent ?—Yes; and in Ireland and Scotland more than in England, but also very much so in England.
2511. Mr. Alderman Copeland ] Can you give the Committee any information as to the probable amount of costs that Messrs. Bass have incurred in taking legal proceeding against persons who have pirated their label ?—I think they have spent about 700 or 800 pounds in the last two years.
2512. But take the last seven years?—I cannot tell you.
2513. Can you procure that information for the Committee ?—Yes.
2514. Mr. Moffatt.] Can you give the Committee any illustrations of the manner in which this fraud of mixing is perpetrated?—Yes; this is a very ingenious machine for mixing (handing in a tooodcut).
2515. Mr. Milner Gibson.] Do you authorize the sale of your own labels ?—No; we give them all away; they are supplied gratis, and they are all supplied by ourselves; we take very great
precautions. Every label has either the name of the bottler on it, or a number signifying his name.
2516. Supposing a person bought a quantity of your ale in cask and wished to bottle it. he would wish also to put on those bottles your mark to show that it was your beer, though not of your bottling; how would he get those labels ?—If he could show to us that the beer was in proper condition to be bottled, we should be glad to give them to him.
2517. You said they were openly sold in Melbourne ?—Yes, they were all forged ; the genuine label cannot be sold.
2518. Might not those labels be put upon bottles containing beer which had been brewed by you?—It is quite possible; but the parties who got our genuine ale in cask, if they wished for genuine labels, could get them from us gratis.
2519. Does not the use of a label like yours rather enable persons with greater ease to deceive the public by filling your empty bottles with spurious beer, because all the bottles bearing your mark when emptied, the mark not being defaced, might be filled again with spurious beer?—We think that if the refilling of the bottles were punished as a misdemeanor, no person would be found to do it.
2520. Then the question would be, to ascertain whether the ale in the bottle had been brewed by you or not; the question of the mark would not arise, as it would be your mark ?—No doubt.
2521. Mr. Attorney General.'] It would be applying a mark denoting Bass's ale to an ale that was not Bass's ?—Yes.
2522. Mr. Selwyn.] Would you make that penal ?—Yes; that would be a worse offence than the other.
2523. Suppose I had some of your bottles, and brewed some beer of my own, and kept it in rny own cellar, that would do you no harm ?—No, if you did not sell it.
2524. You would say that a person must not only refill the bottles with ale, but sell it ?—Yes.
2525. And you would make it a penal offence unless those labels were taken off?—Yes; if they sold it as Bass's ale they should be subject to penalties.
2526. It would cost some labour, would it not, to take the labels off of a good many bottles ?— Not much when they are washed ; the difficulty would be how to keep them on; in fact, some pains would be taken to keep them on if dishonesty was intended. \
2527. You do not sell bottled ale yourselves ? .'—Ko, but we issue with every lot of ale that we sell for bottling a sufficient quantity of labels to cover the bottles.
2528. What sort of bottles are they ?—There are reputed quarts and reputed pints, and-also imperial quarts and imperial pints.
2529. How much do the reputed quarts contain ?—There are six reputed quarts to the gallon, and 12 reputed pints to the gallon.
2530. Has your attention been called to the clause in the Bill which relates to the marking of goods with false quantities ?—Yes ; it is now the custom of all bottlers to sell the old fashioned quart and pint as " reputed quart" and " pint," and the imperial quart and pint as such; so that there is no deception practised whatever, and n person understands what he is buying.
2531. If he buys 12 dozen quart bottles, what would he expect to get ?—He would be asked the question whether lie should be supplied with T. C. Coxon. " reputed quarts " or " imperial quarts."
2532. Are they so marked ?—Yes; on the card of prices it is always put " reputed quarts."
2533. Mr. Moffat] On the label ?—No; that is put indiscriminately on all the sizes of bottles.
2534. Mr. Milner Gibson."] You export largely to India, do you not?—Yes.
2535. Is it true, that after your bottles have been emptied, it is the common practice in India to fill them with an inferior beer made there, and to sell them again ?—I do not know where the beer is made; we receive information that the bottles are re-filled.
2536. Mr. Selwyn.'] Is there not an inferior beer sold under the name of Byass ?—Yes, but he is a bottler, not a brewer; he is a very respectable bottler.
2537. Mr. Moffatt.'] Does he buy beer from you ?—No, he never has bought beer from us; but that was an accidental resemblance of name.
2538. Have you any other instance to give to the Committee of the manner in which these frauds tell upon the interests of your firm ?—I will read a letter from Dr. Bloxam, 28, Duke- street, Grosvernor-square. He says, " I think it right to ask you a question. I have been in the habit of sending for pints of your ale to a public- house in this neighbourhood, and have generally been well supplied. On three or four occasions, however, bottles have been sent to me containing an ale differing totally in colour and quality; apparently 4d. ale which had been bottled in your bottles, i.e., having the same label as the one inclosed. Suspecting fraud somewhere, I ordered my servant to deface the labels as the bottles were returned, and I have to-day received a message that they will not take the bottles back if the labels are so defaced. Is this right ? I therefore believe that justice to you demands that you should be put in possession of the facts, leaving you to draw the inference. I enclose a label taken from a pint bottle this day, on which I have endorsed my signature."
2539. Have you any reason to believe that that case is one of very general occurrence in your trade ?—Yes, we have no doubt of it; we have had information that persons have seen them draw beer from an engine at the counter into the bottles.
2540. If you put no label upon a bottle, that fraud would not be perpetrated ?—No.
2541. Chairman.'] But they might draw your beer ?—Yes, they might.
2542. Mr. Moffatt.'] Are there any other instances that you can lay before the Committee ? —Yes. I have a letter here from India, the writer of which says, " When in Calcutta about two years ago I amused myself one day at lunch by pulling the label off a bottle of Bass' beer; my native servant begged me not to deface the label. I inquired why; he informed me that for every bottle he sold to the native beer merchants with Bass' label well preserved on the bottle he received two pice ; but if a Bass' label was not on, he could only get one pice." Then I have another letter in these terms: " I am a consumer of your bottled ale, and purchase in this vicinity what purports to be ale of your brewery, and as a protection to yourselves, the public, and myself, I ordered my servant to deface the labels upon the bottles previously to returning them to the person from whom I purchased them. When my servant accordingly took the bottles, the person refused to receive or allow for the empty bottles. Will you kindly inform me whether this is one of your rules, or if you sanction such a proceeding." And many other cases have come to our knowledge. There is also this fraud practised : the genuine ale is sold upon its merits, and the labels supplied for the genuine ale are put upon inferior ale.
2543. Can you furnish the Committee with any estimate of the pecuniary loss which Messrs. Bass & Company suffer by these misrepresentations and fraudulent labels ?—It is impossible to give any estimate.
2544. Have you any remedy to suggest to the Committee by which the rights of Messrs. Bass & Company could be better protected, and the spurious article not be sold for theirs ?—We have seen two Bills which have been introduced, and we think that either one or the other would answer the purpose; that either would be a sufficient protection, and all we want is that the House should pass the Bill.
2545. Do you think that Bill No. 2 would be sufficient to protect the interests of Messrs. Bass & Company .'—We think that registration would be an advantage.
2546. Mr. Potter.'] What benefit do you think would arise from registration ?—We think that this (pointing to a label) is very like a fraudulent imitation, and we think that if there were registration, that could not be passed; it is very like our label.
2547. But would you have any difficulty in proving, without registration, which was your original mark ?—None whatever.
2548. Would not summary jurisdiction enable you to punish at once the fraudulent imitator, and at a slight expense ?—Probably so.
2549. Mr. Attorney Genera/.] Before a magistrate ?—Yes; that would be a great protection to us.
2550. Mr. Milner Gibson.] You used to have a different label from that which you put on the bottles now ?—Yes, without a trade mark.
2551. Why did you make the change?—The old label had become so much imitated and forged in all directions that we thought it was doing us more harm than good, and we withdrew it, as I have no doubt we shall have to withdraw this, if things go on as they are now doing.
2552. Have you found that since the subject has been before Parliament, and it is proposed to make the appropriation of trade marks a criminal offence, there has been any diminution in the practice ?—Yes, it was very common, before the Trade Marks Bill was talked of, to sell Burton ale as Scotch ale, and Scotch ale as Burton; and I know that since the first Bill was introduced that many parties have discontinued the practice, and they now label things much more carefully.
2553. You think that they were a little alarmed? —Yes, no doubt they were, and they began to take some pains to be prepared for the alteration in the law.
2554. I do not exactly see how you would stop the practice of re-filling the bottles, which is as injurious to you as forging the trade mark itself? —We think that if it were made a misdemeanor the risk would be so great that people would be deterred from running so great a risk as two years imprisonment.
2555. Chairman.'] How would you prove that it was not your beer ?—We should prove it by analysis; the Burton water is a very peculiar kind, and different from the water used by most brewers.
2556. But suppose that a person set up as brewer in Burton, he would puzzle your analyst ? —Yes, no doubt.
2557. Mr. Crum Euring.] Or, I suppose, if he were to take the water anywhere from the Trent? —No; the beer is not brewed from Trent water ; it is brewed from spring water.
2558. Mr. Attorney General.] You have spoken of re-filling as a practice that you object to; but is not the real ground of the complaint this, that the beer of another manufacturer is sold in a bottle with Bass's trade mark upon it ?—That is perhaps the more correct way of speaking of it.
2559. It is selling the manufacture of A. in a vessel, cask, or bottle, which is marked as the manufacture of B. ?—Yes.
2560. It is clear that the re-filling by itself would not be objectionable if it stopped there; but what you complain of is the selling of that beer under a false designation?-;—Yes.
2561. If there is a bottle honestly marked containing Bass's ale, that is emptied and the ale is drank, then Thompson's ale is put in and sold in a bottle bearing Bass's label; that is a false representation, the ale being sold as Bass's ale, when it is Thompson's ?—Yes.
2562. I infer from the memorandum you havehanded in that it would 'ye a part of the duty, or Mr. at least it would be in the power of the registrar, to refuse to register a mark brought before him if he thought it so like another as to be calculated to deceive ?—That is the intention.
2563. You suppose that it would be a part of the business of the registrar to refuse to register marks ?—Yes ; but it would be indifferent to us whether he refused or not if we had notice, so that we might look at the marks before they were registered, and protest against them.
2564. Or if they were passed, that you might appeal against them ?—Yes; there is another case that I have not yet mentioned; an ale is sold in Ireland as the ale of Bars & Company.
2565. But in what way do you consider that to be a fraud ?—Because the party buying it thinks that he is buying Bass's ale.
2566. Mr. Milner Gibson.'] You would not consider the use of your name alone without a mark a sufficient security ?— No; because there might be another Bass.
2567. Mr. Attorney General.] You consider that there is a colourable imitation in the case of " Bars;" would you say the same thing of Base ? —Yes, unless the man's name really was Base ; if this man's name had really been Bars we should have had nothing to complain of, any more than if his name was Thompson or Johnson.
Minutes of Evidence taken before the Select Committee on the Trade Marks bill
Parliamentary papers, 1862, pages 114-117
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