The Rise of Henry Morcar

by Phyllis Bentley

  “Aye—but you see it’s Shaw of Prospect,” said Mr. Butterworth.

  “By God, I’ll sue him!” cried Morcar, springing to his feet. “I’ll not stand——” By a violent effort he checked himself; he had been about to say: “I’ll not stand bastard cloths as well as bastard sons.” He struck the merchant’s desk a savage blow with his fist; the pain relieved him, and he struck the desk again. “It’s just what you might expect of Shaw of Prospect,” he said. Finding that his voice was thick with rage, he paused, swallowed, then remarked in a tone to which he strove to give a judicial calm: “But what are the Shaw lads about? Hubert and Eric? I shouldn’t have thought they’d lend themselves to a trick of that kind?”

  “They’re not with him now, you know,” said Mr. Butterworth. “Hubert went off to Australia—he’s in textiles there—and Eric’s in South Africa growing oranges. Or it may be the other way round. Which was the one that flew?”

  “Eric,” said Morcar mechanically, staring before him.

  “Yes, Eric. It’s he that’s growing oranges.”

  “I suppose they couldn’t stand the old man. And I don’t blame them,” said Morcar viciously.

  “I’ve heard he’s a bit difficult,” said Mr. Butterworth in a soothing tone. “But it’s awkward for you, Harry, having worked for Shaw. He may contend that you made the design when you were at Prospect, you know. He may well contend so.”

  “He can contend till he’s blue in the face, but he shouldn’t have used my trademark,” retorted Morcar. “It’s no good, Butterworth—I shall have to bring a case. If I don’t, we shall never see the end of it. I know——” he was going to say: “the Shaws,” but managed to turn it into—“the ways of Mr. Shaw. It isn’t the first time he’s done this sort of thing.”

  “Well,” agreed Mr. Butterworth reluctantly: “You may be right. It may be a bit—painful, though. In the circumstances, I mean.”

  Morcar gave him an angry look and went out.

  He encountered the same arguments, phrased in more legal terms, from his solicitor—and one more cogent.

  “When was the trademark registered?” enquired the current Nasmyth, who was now the son of the solicitor Morcar’s father had employed, a University man, rather soft and sleek by Morcar’s standards. “And where? At the Patent Office in London, or the Manchester branch for textiles?”

  “Neither,” said Morcar bluntly. “It’s not registered at all.”

  “Not registered?” exclaimed Nasmyth, astonished.

  “I’m afraid I didn’t realise it had to be registered,” admitted Morcar. He felt sick with anger at his own ingenuous and ignorant omission. Put him against the Shaws, he thought, and they win, every time; in spite of his recent successes, his expanding experience, he remained naïve against their innate sophistication. If the charming name of Thistledown had to be sacrificed it would cut him deeply, in sentiment, pocket and reputation. He felt sore all over, raw to the touch, lacerated by anger and disappointment. But this time he would fight; this time he would not give in; he did not intend to be rooked by Mr. Shaw as he had been by Winnie.

  “Trademarks should be registered, you know,” Nasmyth was saying, shaking his head. “If I had known … However, you can claim you have established a right by usage, I don’t doubt.”

  “I’ve used it for five or six years,” said Morcar.

  “Pity you never thought to register it,” repeated the lawyer.

  “It’s mine by five years’ usage—it’s known as mine all over the world,” said Morcar fiercely.

  “Useful but possibly difficult to prove,” began the lawyer, hesitating.

  Eventually he agreed to send Mr. Shaw a letter of an astonished and enquiring turn, requesting an elucidation about the Soft as Thistledown label.

  To this he received, on Prospect Mills notepaper, a reply in Mr. Shaw’s thick small black script, curtly denying any infringement. Nasmyth thereupon repeated emphatically to his client all the considerations tending to the doubtfulness of his case and the probability that he would lose it if he took it to the courts.

  “You note that Mr. Shaw has not even thought it worth while to take the matter to his solicitor,” he pointed out.

  “He thinks I shan’t go to extremes because of family considerations,” said Morcar hardly. “But he’s wrong. Don’t you see, Nasmyth,” he urged: “To clear my own reputation with my customers, I’m bound either to secure a withdrawal from Shaw, or make his deception public. If I can’t do that, I shall have to give up the Thistledown trademark myself and adopt another. I daresay I shall have to do that in any case—Shaw’s ruined it by putting out poor crude stuff under that name.”

  “Losing a court case doesn’t tend to clear the reputation,” Nasmyth advised him gloomily.

  “I shall press for damages,” said Morcar, stubborn.

  Nasmyth sighed. “I’d better get you a Counsel’s opinion,” he said. “And then we’ll see.”

  “Aye, do,” said Morcar. “Get it from somebody who specialises in trademarks, if there are such people—somebody up and coming, a young man who isn’t afraid of a fight.”

  “I’m afraid you are confusing a Counsel’s opinion with a barrister’s brief,” said Nasmyth in a dry legal tone.

  “Well, you know what I mean,” said Morcar impatiently.

  The lawyer bowed his head to signify assent.

  A few days later he informed his client that the counsel he had consulted—Harington, Edward Mayell Wyndham Harington, a rising junior with whom he had been at college, he explained—would like a conference before giving his opinion, as one or two knotty points seemed to be involved. Morcar snorted derisively at this but agreed to attend the barrister’s chambers, provided the conference could be fixed for a day when he would be in London in any case on business.

  The following week he found himself ascending the worn stone stairs of one of the inns of court behind the black-coated Nasmyth. His surroundings alarmed him; he viewed the fine old square, the paved walks, the well-rolled grass, the occasional slight tree, the ancient buildings, the solid oak doors, the small old rooms, the piles of tin boxes white-lettered with clients’ names, with mingled awe and derision; they seemed to him to symbolise, to sum up very accurately, in their ancient beauty, the nonsensical out-of-date processes of the law, which were entertaining to look at but death to engage in. Seeing them, all the layman’s distrust of lawyers returned to him in strength; he warned himself that this was not his proper place and he had better not venture too far into it.

  “If this fellow’s opinion isn’t very strongly favourable,” he said to himself: “I’d better drop the case and change the trademark.”

  But what guarantee was there that Mr. Shaw, emboldened by his son-in-law’s retreat, would not repeat his trick? Morcar ground his teeth and greeted bad-temperedly a man of about his own age, rather fair, rather plump, rather bald, with large pale grey eyes, a fresh complexion, very handsome cuff links and a look of mingled arrogance and power. This was presumably Edward Mayell Wyndham Harington, thought Morcar grimly. He took a dislike to the barrister on sight, which was not modified by the sound of his voice. This was strong, resonant, even beautiful in its mellow cadences, but it contained those inflexions which the north-country Morcar despised as southern affectation, and was perhaps rather too consciously employed.

  “There are two points, Mr. Morcar, which seem to need clarification,” began the barrister when the party was seated. “The first concerns your employment with Mr. Shaw. Was this trademark Thistledown ever used during that employment?”

  “No,” said Morcar. “The cloth was not then invented.” It occurred to him that this was rather strong, considering the French manufacture which had given him the idea, and qualified it by adding: “In this country.”

  “And when did that employment terminate?”

  “August 1914,” said Morcar with some satisfaction.

  “Oh? There was no post-war employment?”

  “In 1919 I was
employed by Mr. Shaw for one night. I received no pay and did not enter his mill.”

  There was a pause; the barrister looked at the lawyer, who said with a cough: “The employment was terminated by a family disagreement, as I understand.”

  “You assure me that any disagreement that might have occurred then did not concern this cloth or trademark, Mr. Morcar?” pursued the barrister.

  “I tell you that neither the cloth nor the trademark was thought of in the West Riding before 1922 or 1923,” said Morcar angrily.

  “1923—that was when you first made the cloth and used the trademark? Now what was the difference between the cloth you assisted in making while with Mr. Shaw and the Thistledown made by you alone in 1923?”

  “How can I possibly explain that to a man who’s never handled a hank of yarn in his life?” exclaimed Morcar irritably. “Any West Riding man would know the difference right away, but you—”

  “Ah! You could call expert witnesses if necessary?” said Harington swiftly.

  “Of course.”

  “A useful point,” said the barrister. “My second point, Mr. Morcar,” he continued in his mellifluous drawling tones: “springs from my surprise that the Patent Office accepted such a name as Thistledown as a trademark. It is a word in general use, which might legitimately be used as a noun of description, for purposes of comparison, in many trades, especially those concerned with woollen manufactures. It therefore lacks distinctiveness, and might also be judged to operate unfavourably, in unfair restriction that is to say, towards other traders. However, am I to understand that the word was so accepted and registered?”

  “No,” said Morcar with the calm of extreme anger. “It was neither accepted nor registered. I was not aware that such registration was necessary.”

  “But then, my dear Mr. Morcar,” drawled Harington, throwing out his hands, palm upwards, in a gesture of amused resignation: “Your case is infinitely weakened.”

  The barrister’s fine white hands, his drawl, the way he pronounced Patent, his formal phrases which he evidently enjoyed, his stress on the words trade and traders, which somehow defined such matters as beneath a gentleman’s consideration, exacerbated Morcar’s rage to a pitch where he could no longer restrain himself from venting it.

  “The fact of non-registration could have been ascertained from Mr. Nasmyth by letter,” he said coldly. “There was no need to drag me here to discuss it.”

  “Mr. Nasmyth had reported the fact to me,” said the barrister at once.

  His voice was calm but his face showed a faint flicker. “He’s afraid for his conference fee,” thought Morcar contemptuously, and he remarked aloud: “Then why bring me here to report it all over again?” He answered himself in secret: “To show off his learning and his voice,” and added angrily aloud: “I’m a busy man, sir, if you are not.”

  The barrister flushed—it was possible that Morcar had hit an awkward nail on the head—and raised his fair eyebrows haughtily, but drawled without apparent concern: “It was essential that I should hear your personal testimony on your business connection with Mr. Shaw, and I should like also to go into the matter of your proofs of use of the trademark—if you have time.”

  “Certainly,” said Morcar, trying to maintain his cool tone, though he felt his head congested with angry blood: “I have time for anything which furthers the establishment of my exclusive right to this trade name.”

  “It is simply a name, I take it, not a name printed in any special manner or associated with a picture or design?”

  “That is so.”

  “You have used it for five years, to all your customers?”

  “Yes. All over the world.”

  “Can you show correspondence referring to this name, ordering cloths by it, and so forth?”

  “Most certainly I can. Here’s a specimen,” said Morcar, pulling out his pocket-book and handing over a letter from a New York merchant laying a big order for your Thistledown cloths.

  The barrister scanned it, and was about to speak when the telephone on his desk interrupted him. He spoke down it quietly, quickly and with evident displeasure, but in the same mellifluous drawl he had employed during the interview. “The drawl must be genuine, then,” thought Morcar derisively. “Poor fellow!” Nasmyth was trying to fix him with a glance, and mouthing a query as to what Morcar thought of Harington. It was clear that he expected an admiring answer; Morcar, though not without perception of the barrister’s acumen, which had revealed even to him several new aspects of the case, gave himself the pleasure of replying: “Nowt!” with emphasis. Nasmyth coloured and sat back, disconcerted; Morcar, looking away, saw that the barrister’s large pale eyes were on him and that Harington, though doubtless ignorant of the significance of the Yorkshire word, was perfectly aware of his client’s valuation of his services. Harington now laid down the telephone and stated in his smooth unpausing drawl:

  “I will send Mr. Nasmyth my formal opinion in writing of course, but there is no harm perhaps in my telling you now informally of my main conclusions. It would appear that the proper course is undoubtedly for Mr. Morcar to proceed at once to register the trademark, furnishing all possible proofs of usage with his application. The proposed registration will be as is customary advertised in the appropriate trademark journal. Mr. Shaw may then choose to oppose it, in which case the onus of proof of his own use will rest on him. The Patent Office will then make a decision, which can be contested by a case against Mr. Shaw, if necessary; it would seem that Mr. Morcar will be able to prove longer and wider usage. If Mr. Shaw does not oppose registration and the trademark is registered, his case, if he then uses the trademark, will be immensely weakened by his lack of opposition. I have put the matter simply and informally and not in legal form for you, Mr. Morcar—”

  “Thank you,” said Morcar sardonically.

  “—but that is the gist of my conclusion.”

  Morcar, revolving the statement in his mind, decided that it was clear and on the whole comforting. “Damn him, he knows his job,” he conceded reluctantly. Aloud he said: “I am obliged to you, Mr. Harington.” He rose briskly, implying, in courteous contrast to his previous hints, that the barrister was a busy man whose time must not be wasted.

  “And now that our formal conference is concluded,” said the barrister cheerfully, rising also: “Perhaps you and Mr. Nasmyth will give me the pleasure of your company at lunch?”

  “Either he has another textile case on hand and wants to pump me, or he wants to soothe me down for Nasmyth with a view to further business,” thought Morcar cynically. He felt that he had been made to look such a fool by the two men of law that it was a point of textile pride not to reveal the extent of his humiliation. “Thanks—that would be very pleasant,” he said. “I’m not sure whether I’m engaged or not—there’ll be a message for me at my hotel. If I might telephone?”

  “By all means,” said Harington affably, offering him the instrument.

  The message, as Morcar expected, liberated him for the lunch hour, and the three men were soon passing through the arched entrance to the court and climbing into a taxi which speeded swiftly to answer Harington’s loud smooth call. Morcar’s mind for the last few minutes had been on the business which his telephone call had settled, and on returning his attention to the present he found Harington apologising with unexpected emphasis for the Bloomsbury restaurant towards which they were driving. It seemed he was meeting his wife there—a previous arrangement—better perhaps not to attempt at this late hour an alteration which might cause delay—he and Mrs. Harington were to attend an auction together—some nice pieces were being sold from Lord So-and-So’s place. He did not say where the auction was to be held, and Morcar felt sure, from the pucker on the full lips and the frown on the bald brow, that the auction-room lay far away from Bloomsbury, which had doubtless been chosen for the barrister’s convenience. He felt sure also that Harington had thought the restaurant quite adequate for the entertainment of Morcar until he hear
d on the telephone the name of Morcar’s hotel, which was highly expensive and well-known, even famous. Morcar smiled pleasantly and said he should be glad to make the acquaintance of the restaurant named, as he had not visited it before and liked to find new places. At this Harington looked even less comfortable than before, as Morcar had intended. He might, he reflected, be ignorant in law, but when it came to money he could probably buy up Harington five times over and not notice it; if Harington chose to insist on his own advantages, so would Morcar.

  They entered the restaurant, which was Italian and, as Morcar had expected, of good and even stylish quality—he could not imagine the barrister contenting himself with anything less than fine wines and a good cuisine. It appeared that Harington was well known there, and the business of exchanging a small table for a larger one was carried out expeditiously, which somewhat restored the barrister’s good-humour. Mrs. Harington, it seemed, had not arrived. The men settled themselves and ordered drinks; the drinks came and were disposed of; the barrister looked at his watch and frowned impatiently, fidgeted, frowned again, spoke of telephoning to Kensington, decided against it, summoned again the wine waiter, who did not immediately appear. His fine voice had an edge on it when at last he said: “Ah, Christina!” and the three men rose.

  “Mr. Morcar, my dear,” said Harington smoothly. “Nasmyth you know of old.”

  The tone of his voice shouted aloud: “I want something from this man, so soothe him and flatter him.” Morcar had heard this tone in men’s voices before when they were addressing their wives, and he now wondered cynically to which type of wife it was addressed on this occasion—the seductive, the condescending or the motherly. He turned, and found that Christina Harington was none of these things; she was the elegant, the gracious, the beautiful. It struck him that he had never seen an elegant woman before in his life.

  As Morcar made so much material which women wore, it was a habit with him, part of his work, to observe the apparel of all women. The season was spring, the day cool and bright; Christina was wearing a dress of thin black cloth, admirably cut, with a small black hat and an abundance of silver foxes. Her figure was charming, her hands slender; she had no jewellery save one magnificent sapphire ring. So much Morcar had noticed while she drew off her soft white gloves; then he looked in her face and received a shock of surprise. She was lovely, she was unhappy, she was frightened. Her complexion was milk-white, her profile most delicately chiselled, pure, clear and flawless; her eyes were dark-blue like her sapphire, deep yet bright, like the sea; her dark hair, cut short in the style of the day, curled so thickly that one might guess she had some difficulty in confining it within the limits set by her taste. Her lips, beautifully moulded, delicate yet full, were lightly touched with carmine. This style had not then penetrated to the provinces, and Morcar felt a delight, a sense of joyous release from old shibboleths, in the company of a woman of quality who thus showed her fashion. Her voice was soft and gentle; her southern pronunciation struck Morcar as childlike, touching. Harington became infinitely more real to him through her presence. At the moment she was apologising rather breathlessly for being late; her husband, in frowning concentration over the menu, seemed to deride her apology as unnecessary yet wait for more.