420
43.
corpol'ationis not that',lI1aaengaged at Fecampin the manufacture of Benedictine. Furthermore, the change that topk place in business in 1876 was of such character that no ill Benedictine would probably regard it as. of any importance. Mr·. LQ Grand retained the ownerspip -of the bulk of the stock of the company, and became its executive·head or manager. Theliquor was thereafter produced uI.ldljr the supervision of the Jormer and mainly for his profit, at the same place, at the saroe{listillery, anq. according to the same formula. I. fail to discovllrin the last contention.of defendant's counsel any valid ground for refusing equitable relief. 'l'herefore my conclusion upon the whole case: is that defendant should be restrained Dlaking use of complainant's labels,wrappers, circulars, etc., in the manner heretofore done, and that it shoqld be compelled to account for whll.tever profits it has realized from. such unlawful use. It will be so ordered· ./'
. ENOCH MOBGAN'S
SoNs Co.
tl.
WENDOVER
et al.
(Circuit Oourt, :D;New 'JW1'sey. September 23,1890.) TJUJ>E-MAJUt+lNFRINGEMENTo
Complainant had a trade-mark in the word "Sapo1!o, "used to designate a ticularktnd of soap. When persolls called at defendant's store and asked for ,.their salesman, would" .explanation,·. pass out a soap called "Pride (If the Kitchen," on which these. words were plainly marked, and receive the'customllry price. Tne wrapperS' ueed on the two soaps were entirely different, anlUh!! and shape of the cake!! atlJ() (llfrered. lleuHhat, though there was no oJ the woro"SapoliQ" on the soap, and 110 resemblance in the the transaction amounted to all Infringement ofplaintiff'atrade-markt and waula be enjoip.e.d. , , . , ' :
.
..
. ..'
·. On bill Oox, for complainant· fordefendan,ts.
qREEN,J"; . 'i'his is a.,suitin; to restraip the unlawful use of or symbol, "SapoJ-iC).l'The bill, that the corow plainantiatheassignee'Qf t4eorigi1,1ators of the word "Sapolio," a wonl used to dellignate a sCOliripg soap, which has for many years been wiq.ely ltnowp. and recognized by the public as the trade-mark, or t,rade-name of the. cOJUpiainlj.ut; that the complainant has a right to the exclusive use of this word-symbol in every lawful way; and that such exclusive Use has been upheld by the courts, ap.dadmitted by all. The defepdants are charged with selling publicly a scouring or sand soap, under, as, and for Sapolio,:whic/J. isnQt; SapoIio, and is not the manufacture of the complainj;Luts. The Pr9veq. are that, on three or four occasions, certain agents of the: went to the store of the defendants, .. J.,fll!,q.,AtlkeQ. forSapolio. The sale/;!man of the 8<l\t: .. to. tAe a cake' pi $Oap
ENOCH· M.ORGAN'S SONS CO. tI. WEN»OVEB.
421
"Pride of the Kitchen," without explanation, and received the custom:' aryprice. It is this class of transactions which the complainant sists constitutes infringement of its trade-mark or symbol. It is admitted that the soap designated as "Pride of the Kitchen" is enveloped in a wrapper wholly different from that used to envelop Sapolio, and that the shape and size of the cake also differs from the usu.al size of :cake of Sapolio. It is further admitted that the words "Pride of the Kitchen" are plainly printed in large and legible type across the wraP"' per enveloping that soap. Upon the argument, I expressed some doubt whether the proofs did anything more than show a case either of decep" tion as between the buyer and the seller, or of an the part of the purehaser, in the open substitution of the one soap for other by the salesman; but, upon reflection, I am of opinion that the transaction constituted an infraction of the property rights of the plainant, and is actionable. It is perfectly well settled that a "trade!ulark" is property. If so, any use of it by others than the owner or rightful possessor, if unauthorized, is unlawful. The property of the complainants in this trade-mark or symbol is not only not disputed, bu..,t clearly admitted, by the answer, and is as clearly established by the proofs. The law, then, is bound to protect the owner of this property in the use, and the exclusive use. Now, what did the transaction in the store of the defendants, as disclosed in the proofs, amount to? Simply this: When asked by the complainant's agent for a cake of SapoUo, the defendant's agent, in response, delivered a cake of Pride of the Kitchen, which, in effect, was an assertion that the cake delivered was SapoUo, the very identical soap which had been asked for. In otJ,1,el; wqrds, the act of the defendant's salesman was a sale of a soap not mad"e by the c(lmplainants, as and for the soap of the complainant known as II SapoUo," and thereby constituted an assertion on his part that it was SapoUo. If acts speak louder than words, then this assertion wasJQore positivf1'Lnd emphatic than if it had been spoken aloud. The result is that an article manufactured by A. has been Eluccessfully palmed' oft' upon an innocent purchaser as an article manufactured by B., aml as the article JOT which the purchaser made inquiry; and this hal'! been.'accompUshed by a deception arising from and based upon what IDU'st.' be held to be an unlawful use of a trade-mark or word-symbol, the right of property in which belongs solely to the. That the act of the salesman in offering" Pride of the Kitchen" in response to a' mand for l<Sapolio" is, though done silently, a positively unlawful act, is clear. Its unlawfulness consists in an attempt to steal away the. ness of the complainant for the benefit of the manufacturers of "Pride of the Kitchen." It is clearly the object of the law of trade-marksW prevent this. In Celluloid Manuf'g Co. v. Cellonite Manufg 00., 32 Fed',:' Rep. 97, Mr. Justice BRADLEY uses this language: '
a
con is the object of the law relating to 'trade-marks to prevent one from unfairly stealing away another's business and good-will. Fair compa., tition in business is legitimate. and promotes the public good; bnt an unfair appropriation of another's business, by using his name or trade-mark, or 'ail'
the,. .. Or, in .apy other .WIlY.· is be .enJolDell by a court of equity." of another's * * * in any quite enough to include the act which, in Kitchen to be thellorticle demanded,when for., -MlY act .<;>r done to induce the belief in, f!Jct" tl;ae,other unfairi'aIXd indeed unlawful; and true mt:ja.ninK .,andintentof the.actIJ.ofthe defendant's of. "The. case falls clearly within the principle that equity shquld prevent, a.party, from fraq<lulell,t1y;availing .himself of the trade-mark of another, wqich has already ,obtained currency and value iIi. the market, by wha,tt;'ver means he may'qevise for that purpose. 1'he d,l;'feod!illts had no right to' by word of mouth or by act, :or indirectly, the Kitchen was Bapolio, and yet this .is, 'fhl1t the acts of their llgents amount to.· Such acts should be restrained.. They constitutefalse:representations. which tend to mislead ,Vie public, and divert custoU) fr,om the one manufacturer to the other. l':.et issue, asprayed.1or. The questi\.lu of costs'is reserved. Jusl1y by
,r' .
WARl) .'
1'., . .
(Ctrcuit CouH,I). South Carolina. AUg]ll!t26, RULlW'AD PlaiJ:ltitlattemllted to dllive over defendant's track at a street crossing, without stopping tolQOjt or listen,and was struck by. a passing .train, which be could easily have he went on tbt' track. Th,e train was two hours behind th!l schedl1le.Jtl.me; : PlaintiJr's' Witnesses tellti1ied that they heard the whistle either at a crosail/!f 500 yards distaDt. or at one I),OO.yards. further; while defendant's wit.DeSIle&; pallsengers on the' train, testljied the whistle was sounded at all the crOSBings, and 'the engineer teatlfiedtothe same effect. Held; 'that a verdict in plain. tiff's tavorwould be set aside.. . , ',' , . , ' I . . ' , >
COMPANIES-Acoro'BNTlJA.T CROSSI'NG8.
'
,Benet, It{cP¥:llough &: Wen., &:Qrr, for
New Tna(,
and John G. (hpers, for plaintiff. '
'.'
·
, .. The piEiiojtiff. a far.n;Jer,residinga fewmiles from.Greentook him into that city very frequently, had ville, and ,,,bOse thE! 9Z).Y in town, arid :was returning to his hOtne between 7 and 8 o'clock jq the evening. : He was driving in his ,wagon on West street, one of the streets ,of Gre{:)J::\ville, and was in the act of crossing the track of ,the at theWellt-Street crossing. .A.bQyeij}is place, about 500 yards, is the BuncqFPbe-Street cl'Ossing,and. beyond. tha.tagain is Crossing," sQIPe another crossing generally knOW!) as the 500',yatde!'ratther. Just'asidefendant was in alocomotive train came incollislon with his wagon, him. Oneapproachipg tp,e West-Street