general appearance are concerned. On one side of the cube Prepared Carburet of are the printed words: "J. C. Dixon's Iron, for polishing ranges, stoves," &c. virtues or merits of the article are set out; on the third are the words: "Prepared from pure Carburet of Iron by J. C. Dixon;" and on the fourth side are the directions. The ends have a yellow label, on which are the words: "J. C. DIXON'S STOVE POLISH. Carburet of Iron. Price 10 cents." There are differences in the types and the lettering, and the virtues of the respective articles, and the directions for their use are not stated in precisely the same terms, but the general effect is very similar. The defendant has varied his label somewhat, and in some instances the words "pure plumbago" are substituted for the words "carburet of iron;" but the general appearance and effect are substantially the same. A number of affidavits were read, on both sides, as to the closeness of the alleged imitation. Those of the plaintiffs say that the defendant's article is purchased and used to a very large amount by persons who supposed that they were buying the plaintiffs' polish; while the defendant's affidavits allege that both the Joseph Dixon and the J. C. Dixon polish are known to the trade, and that the defendant never sells the one for the other. Further, that any one of common understanding can distinguish between them, and that persons are not likely to be misled. But upon this point the testimony of the defendant is merely negative. That of the plaintiffs is positive and strong. The public have been misled. It is true that the wholesale dealers may generally understand the difference between the two articles, and may not sell the J. C. Dixon for the Joseph Dixon; but the small retail dealers, scattered all over the world, do not so understand this distinction, and if they did, might not regard it. Much less would their customers many of whom are ignorant people, sometimes domestics sent to the store by their employers-recognize any difference between them, or know whether they were buying the Dixon stove-polish which has been celebrated for so many years, or the article manufactured and sold by the defendant. In this case, I have the articles before me, and can judge by inspection as to the resemblance. The result of such a test has left no doubt upon my mind that defendant's article is put up in a shape and with wrappers and labels to closely resemble those of the plaintiffs. And, when to all this we add the fact that defendant has taken the name " Dixon," by which plaintiffs' article is known, the resemblance is complete. True it is that they are not exactly alike. But the whole trade-mark need not be counterfeited. And the court will examine to see if the very differences are not colorable. . The mere probabilities of deception justify the remedy by injunction. . . . The defendant's article, in my opinion, is, as I have before stated, a close and palpable imitation of that of the plaintiffs'. The defendant has no person of the name of Dixon in his firm. He does not pretend to have any authority from any one to use that name. He gives us no account of the "J. C. Dixon" whose name he uses. If there is no value in the name, and the defendant does not mean to deceive, why does he use a name to which it is clear he has no right, and at the same time imitate so closely the wrappers and stamps of the plaintiffs? That he does so for the sole purpose of enjoying the benefit of the name and reputation of the plaintiffs' article, there can hardly be a reasonable doubt. . . . It is proper to add that Joseph Dixon & Co. have established their right to the use of this trade-mark in the courts of several States. I am clear that the injunction should go out. NOTE. Attention is invited to the fact that the learned judge did not pass upon this as a pure common-law trade-mark. He used the term in a broad nontechnical sense, referring to the Pennsylvania statute of March 31, 1860, for the punishment of forging or counterfeiting "any representation, likeness, similitude, copy, or imitation of the private stamps, wrappers, or labels usually affixed by any mechanic or manufacturer used by such mechanic or manufacturer, on or in the sale of any goods, wares, or merchandise, with intent," &c., &c. Paxson, J., said in his opinion: "This act is very broad in its terms, and comprehends every thing which could possibly be included under the term trade-mark." Yet, for our present purpose, it serves as an illustration of the principles applicable to trade-marks proper, and quasi trade-marks. § 397. In Lockwood v. Bostwick,1 the court said, inter alia : An inspection of the two labels shows that the one used by the defendants, and the use of which the plaintiffs seek to restrain by injunction, is, in respect to form, color, words, and symbols, so like the former as to make it manifest that the design of the defendants in using it was to deceive, the resemblance being such as would be likely to impose upon ordinary purchasers. It was alike in the form and size of the label; in the color of the paper, a peculiar, delicate, gray tint; the machine or apparatus represented was one that had no existence in fact, but resembling the real machine sufficiently for the difference to escape observation unless upon attentive examination; and the word "BOVINA" was substituted for "BOVILENE," printed in the same type, and in exactly the same place as the other at the head of the label. The design evidently was to depart from the other sufficiently to constitute a difference when the two were compared, and yet to do it so skilfully that the difference would not be detected by an ordinary purchaser unless his attention were particularly called to it, and he had a very perfect recollection of the other label. The design was to deceive, and to obtain, in the manufacture and sale of the article, any benefit or advantage that might be gained by its being purchased for another article of the same description, which was known and distinguished by a particular trade-mark. There could be no other motive; and it was done with the shallow expectation that the law would not see through the motive, but pronounce that the two labels were not the same, by simply distinguishing the points of difference between them. So far as the object sought could be attained, it would operate to the plaintiffs' detriment by diminishing the sale of their articles in the market, and they are entitled to be protected by a court of equity from this attempt on the part of rivals to deprive them of the fruits of their industry or enterprise, in making their own fabric known 1 2 Daly, 521. and recognizable by its distinctive trade-mark. In Burnett v. Phalon1 it was found as a fact, that the defendants well knew that the plaintiffs used the word "COCOAINE" as their trademark; yet the defendants took the word "CocoïNE" as their mark, to designate the same kind of merchandise, to wit, a preparation of cocoa-nut oil. The court, by Bosworth, C. J., said, in substance, that the defendants had been frequently experimenting with cocoa-nut oil, and selling it since 1840 (and the trial was in 1859), and vending it as a preparation of hair-oil. It was a simple matter to get up a label, and impress on it, and on the bottles containing their compound, the word "Cocoïne," omitting one letter only of the plaintiffs' word. But no plausible or rational explanation, except an intent to defraud, could be given of a transaction so bold as to take the word "Cocoaine." It was, undoubtedly, deemed wiser to instruct the chemist to compose a name somewhat indicative of the substantial ingredients of the compound, without informing him of the fact that Burnett was manufacturing and selling largely a similar article, which was known as "Cocoaine." In this case similarity between the labels of the parties could hardly be said to exist; and yet the piracy was manifest. A very similar case was decided in the Court of Paris, in 1862, -Guislain & Co. v. Labrugnère. The plaintiffs made and sold a hair-dye, to which they had given the name "EAU DE LA FLORIDE" (Florida Water). The defendant, for a product of the same nature made or sold by him, took the name of "EAU DE LA FLUORIDE" (the last word signifying a compound of fluorine with a metallic or combustible base). By this ingenious interpolation of a single letter, the defendant thought to escape the legitimate consequences of his roguery, while he deceived the public for his own profit. Having been defeated in the court below, he appealed. The appellant's counsel argued that there was really no conflict between the two trade 19 Bos. 192; 5 Abb. Pr. R. (N.s.) 212; and 3 Keyes, 594. marks; for the plaintiffs represented their product as a natural water imported from Florida, whence its name; while the appellant offered his article only as a chemical composition, - a combination of fluorine with nitrate of lead or of silver, whence its name of Fluoride; and that this term of chemistry designates the combination of fluorine with bodies less electromagnetic. Moreover, the appellant claimed to have always maintained a dissimilarity of flasks, labels, bills, advertisements, notices, &c. This pretence did not avail. The appellate court not only sustained the judgment, but, finding that it possessed the elements necessary for making a new and more just appreciation, it increased the damages given by the court below. § 398. In the Tribunal of Commerce of the Seine, in 1866 (Bardou et al. v. Sabatou et als.1), came up this interesting case. Bardou, senior, was the first manufacturer of cigarette-paper in France, in or about the year 1841. This paper was sold in little packets covered with glazed paper, having a brown ground, on which was printed, in gold, the letters J. B. separated by a lozenge. In consequence of an error on the part of the public, this lozenge was taken for the letter O, for which reason the paper became known only under the name of "JOB PAPER." The maker J. Bardou, père, accepted this designation, and adopted the name "JOB" in the registration of his trade-mark. Many decisions of courts had confirmed his title to this word as his commercial emblem or mark. A lithographer of Toulouse made and sold similar packets of paper, having the same color, but bearing different ornaments, and over which he had inscribed in large characters this notice: "GUERRE À JOB PAPIER TRÈS SUPÉRIEUR. Paris, 80, Rue de Rivoli, 80. TAKE NOTICE. -LET NO PERSON BE SURPRISED. AM NOT THE SAME MARK of the cover which bears the title JOB. But I guaranty that I enclose a paper superior to JOB by the addition of hygienic substances." The sale of this paper was 1 Annales de la Prop., tome xiv. p. 140. I |