Laura Dunlop QC

In 1840, John Boyd Dunlop was born in Dreghorn, Ayrshire. He qualified as a vet and moved to Ireland. In his spare time, in 1887, he developed a pneumatic tyre for his son’s tricycle. His tyres were made commercially in Scotland; literally and metaphorically, they took off (despite an intellectual property hitch – in 1846 Robert Thomson of Stonehaven had already patented a pneumatic tyre). The Dunlop Pneumatic Tyre Company Limited was incorporated in May 1896.

In 1898, in Kilmarnock, brothers Robert and John Fisher Dunlop started a cycle and motor repairing business, R and J F Dunlop. In 1904, it became the Dunlop Motor Company Limited. In 1905, the tyre company sought interdict against this use of the name ‘Dunlop’, on the basis of alleged passing off.

At proof, Lord Dundas examined whether the name ‘Dunlop’ had become associated with the complainers’ goods. Would the respondents’ use of that name result in the ‘confounding’ of the businesses? On the first point, the name Dunlop was clearly identified with the tyre company and its products. On the second, the respondents’ company carried on business as motor manufacturers and dealers. Advertising at incorporation in terms ‘of preposterous exaggeration’, their ambition appears not to have endeared them to the judge, who described the history of their company as of a ‘nebulous and unsubstantial quality’. Dealing as they did in types of goods and lines of business overlapping with the complainers, confusion would be likely and interdict was justified.

The Second Division disagreed (1906) 8F 1146. The tyre company had no exclusive right to the name Dunlop for all commerce; they could not (using an ‘extreme example’) claim sole use of the name ‘in connection with … golf balls’ (note: Dunlop golf balls appeared in 1910, with the Maxfli launched in 1922). A company could only acquire an exclusive right to use a name for classes of goods in which it actually dealt.

The nub of the case appeared to be motor vehicles. By forcing the motor company to rename, the tyre company would preserve the option of expanding into that market. Were tyres and other accessories so akin to cars as to generate a belief that the motor company was a branch of the tyre company? Would ‘the average citizen of Kilmarnock’ be deceived?

Tyres were proprietary articles. Everything manufactured by the tyre company was stamped with ‘Dunlop’. No such branding attached to anything sold by the respondents. A thoughtless person’s assumption of connection fell far short of proving the case.

The House of Lords succinctly agreed. Dunlop ‘is a common name in Scotland’. There was insufficient similarity between the businesses of the two companies to compel the respondents to select another name, especially when the name chosen was their own.

Is this the case that thwarted the Model ‘D’ Dunlop? I doubt it. And I see no trace of the motor company today. What must have been its shop in John Finnie Street is to let. Reassuringly, however, Dunlop Street remains only a stone’s throw away.

Laura Dunlop QC was vice chairman of the SCLR 2008 until 2011. She is President of the Mental Health Tribunal for Scotland. She is unrelated to anyone in the case and thanks Michael Upton for alerting her to it, many years ago.