PHILADELPHIA
MANUF'G CO. V. J;lLAKESLEY NOVELTY CO.
365
the first defense of want of sufficient title in the complainant falls to the ground. Upon the question of injunction I entertain no doubt. A comparison of the bottles, wrappers, and labels make it apparent that the public would be likely to be deceived in the purchase of defendant's liniment for the genuine Johnson's. Except in the color of .the label, the articles look almost identical. The genuine Johnson's Anodyne Liniment has for more than half a century made use of a certain size and style of bottle, a wrapper of a somewhat striking blue color, and a purplish:-colored label bearing a certain, description, and having a fac simile of Dr. Johnson's name written on it. The defendant's liniment, which is also called "Johnson's Anodyne Liniment," appears in the same size bottles, with a similar blue wrapper, and with a label which differs but little from the plaintiff's, except in a not very marked change in color. The fac simile of the, name signed on the label is F. E. Johnson, in place of A. Johnson. ',l'he evidence goes to prove that the public are actually de-ceived into buying one liniment for the other, and a comparison of the form in which ,both liniments are put up shows that the object that the defendant must have had in the imitation which appears was to the public into buying his lil1iment for the genuine Clearly, he should be enjoined from such unlawful useaf that whiph another has first appropriated. The plaintiff Jennings was one of the firm of 1. S. Johnson & Co. In stating on the label that the liniment is prepared by 1. S; Johnson & Co., he merely retains the name of the firm of which he was a member.' I cannot8ee how the public are deceived or'injuriously affected by such a course. It is not uncommon, under such circumstances, to retain the old firm name. The facts in the case of Medici:M Co. v. Wood, 108 U 218, 2 Sup. Ct. Rep. 436, were quite different. In the present case I am satisfied that a aecree should he entered for the complainant, and it is so ordered. Decree for complainant. ' ,
Pun.ADELPHIA NOVELTY MANUF'G
Co.
V. BLAKESLEY NOVELTY
(Circuit Oourt, D. Oonnecticut. Febrqary 1, 1889.) TRADE-MARKS-mRINGEMENT.,
Plaintiff places its hair-crimpers in a bright red box, having a wbite label with a black border, and on the label the words, "Madame Louie Common Sense Hair Crimpers. Patented August 5, 1879, "-form a column of four lines above the representation of the head and bust of a woman with. curled hair. belowwhich'are the 'Words" Friseur Renommee. To hidetbe crimper; in doing up the hair. turn the ends under." Defendant's b.air-crimpers are in a bright red box, on which is a white label, bearing the words "The Langtry. Elegantes." in a column of two lines above the, representation of the head of a woman with curled hair, at one side of which are the words" One GroBs. " and at the other side the words "No: 1. Black."'and below which are the words "Hair CrjJ:npers." The use of the representation of the woman's head
.
\
866
t'."('"
, 1
:by dill'endant's predecessor snte'dated,thlit
by plaintiff's prtl'rlecessor. : Hela; that there was no such imitation as would authorize a preliminaryinjunc, tion.
In. Equity·. On 'motion 'for apteliminary injunction. Bill by the Philadelphia Novelty Manufacturing Company against the Blakesley Novelty Company for the infringement of a trade-mark. Joshua Pusey, for plaintiff. John J. Jennings, for defendant. SHIPMAN, J. This isa motion for a preliminary injunction in a trademark CA.se. The bill alleges thatthe plaintiff is the manufacturer of haircrimpers, and is the owner ora distip.ctive trade-mark, and peculiar manner and style of putting up,' marking; and boxing said crimpers, in order to designate its own manufacture, as follows: IThe 'crimpers are put up in parkagesof one dozen, wrapped in a paper wrapper of a peculiar shade of tan cOlol', and around each of said packages is placed a small rubber ring. One dozen of these packages is placed within a paste.boat;d box; of a bright redco.lol' 01;1. the outside, and white on the inside. on the lid of the box a white label with a black border, and, as a distinctive trade.mark, in a woman, wit,h te-gether with, the words," Madame 'LOUie Common Sense Hair Crimpers," and tbatthe defendant is using 8Ridtrade-mark and putting up its crimpers in boxes, style, color, and appearance similar to the boxes, packages, wrappers, ,etc.,otthepJaiotH'f,and. in imitation ther,'of, and which are designed t() an4 deceive the public the belieftbat the defendant's hairCl;!mperS are the of the. .The defendant's crimpers are put lip ip.packages of adozen,. inclosed in a tan-colored wrapper, ano. around each of these packages is placed a rubber ring. One dozen of t.hese pacItages arepIacf'd'in a color, and Oll the lid of the box: ia.a white label containing ,the ,following words and design: ' , The Langtry, . I: Elegantes. One o'-m-an--' Gross. with curled hair. ir;:;ct . Hair Crimpers.
I
The plaintiff's label contains the following: ,r,') , ",.:r .Madame Louie Common Sense : .·Hair Crimpers. Patented August 5, 1879. Head and bust of a woman , 'With curled bail'. . Ftiseur RenQmmee. To hide the crimper.1n doing up the hair turn the ends under.
The, inclosihg of each package in a tan-colored wrapper, sur*oundeu a rubber ring; i!l.,notclaimed to bean, important part of the as, the crimpers are ordinarily sold by the box, or are,shown to the purchaser in the box. The bright red color of the box t
DA.NACl'.} V. TH;E ,MAGNOLIA.
367
with the white label and' the woman's 'head; are claim.ed to be-<the distinctive featureil of.the, The use, by the defendant's predecessor, of tb,ewoman's head antedated its use by theplaintiff'spredecessor., ·T.he upon the alleged fact of imitation of the bright fed col<?f of the box and. of the white label. Upon final hearing, after testimQ:q.y th,at p'Q,rchasers have been deceived, I may come to a different bllt ,an inspection of the two boxes shows that their appeara,npewith their, respective labels,is very different. Thedissimtlarity be'tween the the difference in the shape of the boxes. as, they are presented to the eye, are so great that it does not seem that anybody would mistake one for ,the other. The motion is denied.
the
DANACE t1. THE MAGNOLIA
et ale
" (Ut"'cuit Oo'ltrt, E. D. UJuiBiiJna. January 22, 1889.)
1.
ADMIRALTY-JURISDICTION-CONTRACTS.
t.
A contract to stow or load a vessel is not a maritlmecontract, and not en· forceable in admiralty. A Hoe! Charged that the tug lL, through its master; and as well tpeowners of M. Bros., applied to libelanUortbe use of bbelant's ba,rge, to load th,e samewitb merchandise. and a contract was made with defendant; that libelant desired to send with his barge her keilper. which"was objeCted to by defendant as unnecessary aud useless, and ,that said while in. t,he ,custod:yand control of defendant, being improperly and insecurely, negligently and carelessly loaded, sunk, and ,pecame a los8 to:libelihlf.( 'Held, that on the pleadings M. Bros. could be held liable on1y 8S :lessees of the tug M., and, the evidence showing tbat they were or lessees, no judp;ment could .be given against them,
SAJoi:E-'PLEADmo- Al!iP
PRooF.
, '
In Admhlilty.
J. 'Thelibel was brought by the owner ofthe against the steam-tug Iv.{agnolia and the fimn of Manson Bros" owners or lessees of said tug. ltcharges, among other things, "that on the 16th day of December, 1887, .the said tug Magnolia, through its master, and l'eprese,1;ltingas :well himselfas the owners of said tug, and the'firm of ,Manson Bros'i of this district, IlPplied to your libelant for the. use and hire .G,f said barge Mamie, to: load the same' with merchandise, that is, with 'salt,'in the course of its employment upon the navigable waters ,,-of state, /lnd .the of hire was then and there made with said :defendant ,at the, fate of fi dollars per day, as per custom; that your