864
87 FEDERAL RlliPORTER.
products of that article that are not colors or dyes, and that are not specially provided for in the act of 1894, are. entitled to such entry; for such is the clear and express language of the paragraph. It is not claimed that the article in question'is a color or dye, and the only "special" provision relied upon by the appellant is paragraph 60 of the same act, which reads as follows; "Products or preparations known as alkalies, alkaloids, distilled oils, essential oils, expressed oils, rendered oils, and all combinations: of 'the foregoing, and all chemical compounds and salts, not specially provided for in this act, twenty-five per centum ad valorem." The contention on the part of the government is that the merchandise in is a product or preparation known as "distilled oil." The court below found, as matter of fact, "that said merchandise was not, nor is it, a product or preparation commonly or commercially or chemically or otherwise known as a 'distilled oil,' but was and is a product of coal tar, nota color or dye, and not otherwise specially provided for in said act." It is earnestly contended by appellant's counsel that the evidence does not justify this finding, and that, since it was all given by deposition or other writing, this court·has the same advantages for correctly weighing the evidence as the trial court had. Acareful consideration of the evidence, however, does not satisfy us tp.at the court below was in error in its finding of fact. The merchangise in question, being an oil, and being derived from coal tar by the process of fractional distillation, is undoubtedly, in one sense, a distilled oil. But the weight of the evidence is to the effect that it is. known as. "dead oil" and "creosote oil," both commercially and chemically. The same conclusion was reached in the recent case of U. S. v. Warren Chemical & Manufacturing Co., 28 C. C. A. 500, 84 Fed. 638, decided by the circuit court Qf appeals for the Second circuit. Other reasons might be given why we think the judgment of the court below correct, but we deem it unnecessary to pursue the subject further. The judgment of the circuit court is affirmed. ANHEUSER-BUSCH BREWING ASS'N v. FRED MILLER BREWING CO.
(Circuit Court, E. D. Wisconsin.
June 13, 1898.}
TRADE·MARKS AND TRADE-NAMES-UNFAIR COMPETITION.
The mere use of a geographical naIlle, In which there can be no technical trade-mark, unaccompanied by any imitation of labels, or other indicia, may constitute unfair competition, when adopted for the purpose of taking away another's business and good will.
This was a suit in equity by the Anheuser-Busch Brewing Association against the Fred Miller Brewing Company to enjoin the use of a trade-name. Rowland Cox. and Hugh Ryan, for complainant. E. F. H. Goldsmith and N. Pereles & Sons, for defendant. SEAMAN, District Judge. The bill seeks to enjoin the defendant from using the name "Budweiser" as the designation of a brand or brew of beer manufactured by it; and no ground for re-
ANHEUSER-BUSCH BREWING ASS'N V. FRED MILLER BREWING CO.
861i
lief is established by the testimony, unless it may be found within the equitable' doctrine relating, to unfair competition in trade AI': though it is undisputed that this designation has been employed by the complainant and its predecessor in business, for about 20 years, as the name of a special manufacture of beer, for which wide reputation and extensive trade has, been obtained throughout this country and abroad, the name is distinctively geographical (referring to a 'place in Bohemia, Austria, called "Budweis"); and it is both conceded and indisputable that this use coufers no property right or mon()poly in such name, as a trade-mark. On the other hand, the allegations on the part of the complainant, that it has thus established a business and good will in the sale of Budweiser beer, of great extent and value, are well supported, and not controverted. There is, however, no foundation for the further allegation that the beer manufactured and sold by the defendant under this name is of an inferior quality, or "an ordinary American beer," and there is no testimony which even tends to impugn its actual quality as a beverage. Nor is the' name or place of the defendant, as the manufacturer of its Budweiser, in any manner disguised, nor is there simulation of the appearance of complainant's bottles or labels in those now used by the defendant, to constitute on their face a means to palm off the article upon the public as the actual production of the complainant,except so far as the :qame "Budweiser" is used, and is identified as exclusively of its production. So that no case is presented which is literally within the wellsettled line of authorities in respect of such impositions upon the public, nor is it brought directly within the rule stated in the recent and well-considered opinion of Judge Bunn, speaking for the circuit court of appeals, in ;Flour-Mills Co; v. Eagle, 86 Fed. 608, relating to false pretense as to the place of manufacture, as neither the complainant nor the defendant is located in Budweis, and neither holds forth a pretense of such location, in any respect. The purport of the name, as asserted by each, is to designate this brand of beer as 'made "according to the Budweiser process," namely, that in the ingredients and brew it conforms to 'the special production of beer' at Budweis. Therefore the issue is purely one of a fraudulent appropriation of this name, without foundation in fact, under circumstances which both intend and cause imposition, to the injury of the complainant's business and good will. With no property right existing in the name "Budweiser," it is clear that the defendant cannot be precluded from using it to designate its special brew, if necessary for accurate description, or even if such use is "truthful," as alleged in the answer, and is also honest and ingenuous. But if the manufacture of beer was not of such characteras to make this name specially applicable, and it was selected arbitrarily, and for the purpose of taking advantage of the established reputation of the complainant's Budweiser, and with the effect of disturbing its trade therein, such use constitutes unfair competition,-is "unfairly stealing away another's business and good will,"-and must be regarded; in equitY,as fraudulent. As remarked in. Thread eo. v. Armitage, 67 Fed. 900: 87 F.-55
866 ,will. is thl! ,complal1J,allt's,. !llJle,::itance,and, It is as lQuch a liar! oflts aSIJets as its millar, its counting No one has a right to destroy it, except by fair and' 'cQI1lpetitlon."·' ., . ,. .. " ' , "Ol.n f::i l
wae a strong: adjudication in.favOI'of the complainant's predecessor, respecting a fraudulent use. of. this' particular trade-name. While no other caBe, of the numerous. citations by counsel ,can. be said to pass upon the question in the fdrm here presented, I am of opinion that the proposition. above stated, as to fraudUlent use of a name which would otherwise be open to all users, is e1ea:rly within the uniform line of decisions in equity,. distinguishing honest competition from that ,which is unfair and.iUegitimate, and granting relief against devices and means of tliHLlatter class which cause imposition, whatever the form. In this lview of the, law, the facts, so far as material to the controversy, are well established"by admissions, and by testimony which is practically undisputed, as follows: 1. The predecessor of the complainant, }Ir.Conrad, commenced the manufacture of a beer of. distinctive character and excellence about tMyear :1876; through Anheuser & Co.; :as brewers. This product was originally made 'of materials, imported for the purpose, similar to those used in a certain brewery atBudweis, and by the same procesilwhich was there erlrployed; and rthe beer so produced was thereupon named "Budweisel'/, 'Constituting the fillSt adoption of such title'·for any manufacture; jof .beer in this country. If the beer made at 'the Bl1dweis brewery /Was ever brought to this conntry in any quantitY, either under the 'name of'''Budweiser,'' or other designation, it is. not shown by'bompetent evidence; and the only inference which; can be drawn 1lrom the, testimony, in that regard is that then'ame was introduced ;and became known to the tradeln this country, solely through' this: St; ,Louis, production; As to the name by ",hieh the original manufacture at Budweis was known, the defendant introduced, :witMut. proper identification, and miden objection, a laber which shows:1lhe iname '!!Budweiser Beer". on a purpQrted iniportatiQn in New"York from iBudweis; and a witness whO formerly'resided at Budweis.stateSHthat :two gFades of: beer were produced there, one of whiokwas known'ag !'BudweiserConimon Beer," and the'otherns"Budweiser:LagerBeer.I' The label was clearly insuffiCient for any purpose,and the testimony as to Ideal. name, if otllerwilile satisfactory;;:eannot affect the present inquiry. The main' .ingredients which: ;werepeculiar to this beer, as originally made, .were '(1) Saazer hops, (2' a fine quality of. Bohemian· barley, supplemented by .(3) Bohemian pitch, and (4) Bohemian yeast; the latter two imparting, as claimed,· peculiitr flavor ,and quality. The details of the process are 'not I !disclosed, for· reasons which: are probably justifiable, but it ,is ipoSiti¥elvasserted that the brew nnie formly conforms to the Budweisnprocess; and sufficient facts lip:pear to show 'that it is, on the: 'whole, distinctive as a process. ' . 2. The complainant, as suCCeSSQl1'to tl1e,'brewers, Anheuser & and by transfer: from CO'l'l:rad,;subsequently eontinued the'manufacture on its own account; following strictly the same process and care, and employing the same material, except that the finest quality i I
" In Conradv.Brewing Co. {decided in 1880)08 Mo. App. 277, there
ANHEUSER-BUSCH
ASS'N V. FRED MILLER BREWING CO.
867
of At;nerican barley, either Canadian or domestic, selected for the purpose, is stated to have ·taken the place of the imported article after the first year or two, because it was found that equal or superior quality could thus be obtained, while the beer retained its distinctive character, and resemblance to the original Bl1dweis production, unaffected by such change. This substitution appears to have been recognized on ·the labels, by stating the use of the "finest barley," in place of the previous wording,"Bohemian barley." 3. The beer thus produced was of distinctive character, especially in its light color and its flavor,and it appears that such distinction has been uniformly maintained from the outset. Under the name of "Budweiser," it attained popularity and extensive market, throughout the United States, at least, during the introductory term of Conrad; and in the hands of the complainant the trade and celebrity became greatly extended. Although other brands of beer were manufactured by the latter at their great plant in St. Louis, the testimony shows that Budweiser was the production for which they were generally known elsewhere, was practically and substantially their exclusive possession by way of good will, and, through advertising and trade, has constituted the main ground and token of such celebrity as has been attained by the complainant in this country and abroa'd,-to some extent, at least,overshadowing the name of the brewers; so that, as stated by the president of the company, he is. "very often greeted as Mr. Budweiser, instead of Mr. Busch." In other words, the productlon is known rather by its name, "Budweiser," than 'by the name or place of the brewers, and in this they have a. good will of great value. 4. The defendant entered the field in 1891 with a new brew of beer,of special excellence, and closely resembling' that of the complainant, especially ill the light color. To some extent, at least, it becl;l.me a rival of complainant, but thus far was' clearly within the rights of the defendant, and entitled to encouragement. The adoption, however, of the name for this new production, presents a different aspect, as the intention is manifest, in the light of the circumsta,nces and testimony. It was not called "Budweiser" in good faith, and ingenuously. The name was no more applicable to this special brew, if applicable at all, in strict sense, than many others 'which were open for selection, and its value for the purpose rested in the use and popularity made for it by the efforts of complainant; but it appears to have been the object of the christening to take the benefit of the reputation so established in the United States, or in the territory sougl:;lt by the defendant, for beer so named, of like appearance and quality, arid in that guise to invade the complainant's trade by unfair competition. In 1890 and 1891, just prior to this new venture, the defendant was carrying on the agency or business of seIling the complainant's Budweiser beer to the customers of the latter in the Lake Superior territory,-presumably, in connection with the sales by defendant of .its own brews, w,hich were different in their appearance and character. A letter frolp the defendaJlt to the complainant, dated January 22, 1891, speaks for 'itself as to introduction of the new beer, in answer to an
868 ,
87 FEDERAL REPORTER.
rumors that the designed "giving up hand. ling" the Budweiser of the com,plainant It reads: "Permit us to say that thus far we, haven't any such intention. 0)1 the contrary. we ;purpose to sell your J;lndweiser bottled beer so long as there is but a little prl,)tlt in It. You have certaInly been misinformed on this point."
Following this, the defendant, proceeded to its new brew of so-caned ":Budweiser," with which)t entereQthe same market so held for,·and through the compm,inant, with bottles and labels in obvious departure from those previously used for its own production, and in which, there were then marked points of similitude to those of complainant, although since .discarded. ,And the attempted explanations on behalf of the .defeudant as to the reasons for selecting this name tend to confirm, the view I have indicated, rather than an ingenuous choice, as argued on of defendant. 5. The answer of the defenllant distinctly "alleges that it applied said designation to beer, brewed according to the Budweiser process in order to designate the mflnner of brewing, said beer, and to show its quality"; but the testimony introduced on its behalf denies the fact of any such distinctive process; and explains that the reference in the answer was tp the general European process which prevails in Vienna, Berlin, Pilsell, and. elsewhere; being "a different anq nO,t 'l}pplicable to Budweis disprocess than that in tinctively, because, as stated by>¥r. Miller, there is nO "such thing Whereknown in the brewing worldl;ur fore the attempted q(;trQthful.ul!1e"of clear1Y fails. On the other hand, the denials of the existence ¢ such prof9u;uded upon ap.d are entitled to 'cess are Ill> theppsitivetestimony on. the other sic;1e.. As8uroing lk belief ··on its part that .there w.as no Budweiser process, ,tbe defendant ,committed .a wrpng, in tbe name, under the With the existing. as.: shown on behalf of the complf,linant, the confol'll;ls to it in fact, pOl' a:ttempts > COnformity Ilnd theqaPle. hi not truthfully, applied. In 1either view, the bill Jl),y.stbl'l . . . , ! ,The by defendant to ,t4a testimony ,intJ;'oduced by colJ1,.plainant in J,'ebutta,l does nQt to; be .well taken, if The other objections and decree will be. entered :for cODlplainantin accordanQewith this opinion. ,I !
,j '.';. \.' ,'. :, ';
ROWE 'V. &f CO. (CirCUit Court, D. ConnecticlIt.:;, June'15, 1898.). , 1.PATIllNTSUITS....DBMURRER,TO BILL.::
No. 936. l
,
On demurrer tOl\b\U fO,r waI,lt ()t ap,P.earlng on 1he fac,e of a ' pat,ent, U fs not the duty of the c6urt to investigate the prior art. '£' BAME":"VESfG;i ,FOR HORSESIJOJi:'CALi.: .' . '...,. , , The Rowe patent. No. 26,58f,' for a di!!slgn for a' horseshoe ca;lk,isnot, on its face, so manifestly laCKing ,In.IJivent.ion:as to 'be'declarlldinvl!Jid on demurrer to a bill for Infringement.
",r I , ,
.