1'. JACOBHENKELL
co.
471
or .with foreign nations. It avers merely that by' means of the acts alleged they had monopolized the manufacture and. sale of distilled spirits, without stating that in so doing they had monopolized trade and commerce in distilled spirits among the several states or with foreign nations. It is true that the indictID'entcharges that tho defendants have done certain things with intent to monopolize the traffic in distilled spirits among the several states, and that they have increased the usnal prices at which distilled spirits were sold in Massachusetts, and have prevented and counteracted the' effect of free competition in such traffic in Massachusetts. But none of these things are singly made offenses by the statute. The indictment in this particular is clearly insufficient according to the elementary rules of criminal pleading, and charges no offense within the letter or spirit of the second section of the statute. Other questions presented upon this indictment were argued by counsel, and among them the important questions whether the acts charged constitute an unlawful monopoly, within the meaning of the statute; and,;if they do, whether congress has the constitutiocal authority to'declare such acts to be unlawful and criminal, and whether the charged against the defendants were not rather the doings of the corporation :than of its officers. In regard to these questions it is only necessary to remark that they seem to be of such a character as to require that they should not be decided tinally against the government by the trial court, but should be reserved for the determination of the appellate court, when presented upon an indictment not otherwise insufficient in law. Indictment quashed. Judgment for the defend. ants.
CuERvo 1. 2.
11. JACOB HENKELL
Co. et al.
(OircuitOourf, B. D. New
March 14, 1899.)
A cigar manufacturer. to protect his trade-mark, may have an Injunction restraining a box maker from furnishing boxes with those trade-marks to other clgar manufacturers, and against all who knowingly combine for that purpose. SAME-DEFENSES-INFRINGEMENT BY OTHERS.
It is no defense that SpanIsh labels similar to such trade-mark had been used by various for lIlanyyears, nor that imitations of the trade-marks were sold or used, in the absence of evidence that it was with the consent or acquiescence of the owner.
In Equity. Bill by G. Garcia Cuervo against the Jacob Henken Compauy l1-nd othElrB for infringement of trade-mark. Heard on motion for a preliminary injunction. Granted. Jones « Govin j for complainant. Wise &; Lichtenstein, for defendants. LACOMBE, Circuit Judge. There is no dispute as to the facts of this case. The complainant,a manufacturer of cigars, is concededly the owner of a. trade-mark, which as an entirety is embodied in four sepa-
FEDERAL REPORTER ·. vol.
50.
rate Inhals placed inside and outside the boxes containing his cigars. The goods thus marked and put up have obtained a wide celebrity, and for the last 25 .years have had an extensive sale in this and other states of the Union. The defendants do not make or deal in cigars. They manufacture cigar boxes, whioh they sell to cigar makers. They also procura from lithographers labels whioh are almost an exact reproduction of those used by the complainant, even the signature being copied therein. That boxes, thuslabeled, are so close an imitation of the packages in which complainantsells his goods. that an ordinarily careful purchaser would be deol::ived thereby, is not controverted. Not only do the defendants affix to their boxes the three labels which are plaoed thereon before packing, hut with each box they also sell to their customers a. fourth label, which can only be placed on the box, as complainant places it, after the box is filled and closed. Were there any conflict as to the intent of the-defendants, it would be difficult to escape the conviction thatthey'prepare:these boxes for the express purpose of enabling their ctlstdmertl to Joist upon the public goods not of complainant's manufacture, repI'esenting them to be genuine. But there is no conflict; defendants concede that they know for what purpose their, labeled boxes are to be used, and that they make and sell them for that purpose. In defense it is urged that it has been for, many years the custom of the cigar trade in this. country to use what are known as "Spanish labels;" that labels like those complained of in this suit have been on open sale at various,! lithographers, and could De obtained by anyone; and that nearly ·aU the cigar box man.ufacturers in this oi,ty, as well aEl in other cities in this country, have made and sold boxes bearing labels similar to those complained of in this snit. As to the imitation of labels of other manufaoturers,-"Sp1mfsh labels" generally, as defendants call them,-that is wholly immaterial. Complainant is not to be deprived of his trade-mark because other owners. of other trade-marks sufrer inahu as to other imitations of his own fringement withOut trade-mark there iEl not of evidence to show that, these weremade or sold with his consent or acquiescence. This defense has been Sq and forcibly condemned by authqrity that further discu.ssiol'lis profitless. Taylor v. oaryenter, 3 Story, 458; 2 Woodb. & M. 7; Browne, Trade-Marks; § 685, and cases cited. Nor is there anything that injunction will not lie against defendants, because to the they do not themselves IIlilke, pack, or sell the fraudulent cigars. No doubt they may make 'the boxes without objection. There is no trademark, so far as appears, in the style, size, or shape of a ci,gar box. But they domueli more. Theyprooure labels counterfeiting the complainant's, and assemble these labels with their boxes, with the obvious purpose of others, by the use of the labels, to palm off thl:lir goods upon the public as the goods of the complainant. Complainant is clearly entitled to an injunction against all who knowingly combine together to aceomplish that purpose. DeKuyperv. Witteman, 23 :Fed. Rep. 871 ; H08tett8r Co. v. Brueggeman-Reinert Distilling Co., 4{)' Fed. Rep. 188. Motiongrt.Ulted.
SCRIBNER ".cLAidt.
473
SCRIBNER t1. CLARK
et aI.
(Circuit Court, N. D. lllinats. April 9, 1888.) L COPTRIGBT-INl!'RINGBMENT-TITLB OJ' COMPLAINANT. In a suit fot" the infringement of a copyright, where it is shown that the copyright was taken in the name of the complaining pUblisher as "proprietor, .. defendant cannot object that the author was a married woman, and that her husband was entitled to the fruits of her literary labor; for it will be presumed that the legal title Of the author was properly vested in complainant. SAME.
a
Complainant's title is sufficiently made out to enable him to maintain the suit where it is shown that he took the copyright in the name under which he did busi· ness, the name of a firm to all of whose rights he had succeeded on its dissolution.
.
'
8.
SAME-MEASURE OJ' DAMAGES.
Where the infringing publication uses only a part of the matter of. the ori,pnal, and is issued in a different and much cheaper form, the measure of damages lS the amount of profits realized by the infringer, and not the amount of profits that would have been realized to the copyright owner by the sale of an equal number of copies of the copyright edition. . Though the hill prays the forfeiture of all the infringing books, and the plates used in their production, it is unnecessary to grant any other relief than damages, where it is shown that the infringer's place of business, with all the books and plates in question, has been destroyed by fire.
4.
SAME-DEOREE-FoRFEITURE.
In Equity. Bill by Charles Scribner against Belford Clark & Co. for infringement of copyright. Decree for complainant. Affirmed in 12 Sup. Ct. Rep. 734. W. Larned. for complainant. Hutchinson & Partridge, for defendants.
a.
BLODGE'IT, District Judge. This is a bill in equity charging the defendants with infringement of a copyright owned by the complainant of a publication entitled, "Common Sense in the Household: a Manual of Practical Housekeeping. By Marian Harland." The case was referred to one of the masters of the court to take proofs and report findings upon the question of infringement, and he has reported that the defendants, by the publication and sale of two books set out and described in the bill of complaint, one under the title of" How to Cook," and the Cookbook," have infringed upon the other under the title of complainant's copyright by incorporating into their said publication something over 50 pages of the matter of complainant's book, aawell as substantially following the arrangement of subjects and headings. Myers v. Callaghan, 10 Biss. 139, 5 Fed. Rep. 726. I have carefully examined the proof upon which the master bases his findings, and am satisfied that the finding was fully justified by the testimony. The case is now before me on defendants' exceptions to the master's and on complainant's motion for a decree in pursuance of the master's re-; port. It was objected at the hearing that the complainant could notrecover in this case, because the proof shows that Mrs. Terhune, the author of this book, whose nom de plume is Marian Harland, was a married