Robinson and Roberts v. Wheble (1771) may not have been a true “first,” but it is an extraordinary, and largely unrecognized, example of eighteenth-century trademark litigation. The action saw Robinson and Roberts, the purchasers of a magazine, successful in their suit against Wheble, a printer who had used the same title and sold his product as the authentic publication. Absent from the law books, Robinson and Roberts v. Wheble has previously gone unnoticed by legal scholars, despite the rich historical record of the case and its significance as an early trademark dispute with a victorious plaintiff. Printed sources describing the case, including a published trial transcript taken down by a shorthand reporter, shed much light on Lord Mansfield’s reasoning in passing off cases, including his reference to the facts of Sanford’s Case as authority and his practice of considering both industry customs and legal doctrines in commercial disputes. While some literary scholars have discussed the case, there is much for legal historians to gain from close examination.
The Lady’s Magazine
The Lady’s Magazine was established in August 1770 by John Coote, who intended to publish monthly. He engaged a neighboring bookseller John Wheble for the day-to-day publishing activity, and it was Wheble who would receive submissions to the publication. According to Coote’s testimony at trial, he had refused an initial offer from Wheble to buy a share in the magazine.
After publishing seven financially successful issues of The Lady’s Magazine, Coote sold his interest in the business to booksellers Robinson and Roberts for the considerable sum of five hundred pounds. Following their purchase, Robinson and Roberts used many of the same authors and kept the same compiler and printer, but they chose a different publisher instead of Wheble. This decision may have been influenced by the knowledge that Wheble was under fire for illegally publishing Parliamentary Reports.
The next issue, or “number,” of The Lady’s Magazine was to be the eighth. One of the key attractions of the publication was a serial work by an anonymous author called “The Sentimental Journey,” and Robinson and Roberts assured their reading public that this story would be continued in the new eighth issue under their direction. Wheble responded with his own advertisements appealing “to the Ladies” as the “original publisher” of the Lady’s Magazine, claiming that the issue soon to be published by Robinson and Roberts was “spurious” and “formed to deprive him of the honest emolument of his publication.” He pleaded with the public not to “permit any other Magazine in imitation of his, to be obtruded on them.”