that "the defendant's' picks' resemble the plaintiffs' anchors' substantially, as a real pick resembles a real anchor of reduced dimensions. One who would mistake a miner's pick for a diminutive anchor might confound the defendant's brand with that of the plaintiffs', and hardly otherwise. The pick in the defendant's brand is quite as good an imitation of the article intended to be represented as is the anchor in the brand of the plaintiffs of the nautical instrument there sought to be represented. The resemblance between the two brands is too slight to be likely to mislead; and there is nothing in the testimony which shows that the defendant sought to dispose of his whiskey as that of the plaintiffs', or of the plaintiffs' rectification." We see here evolved the sole point: Was the pick made so nearly like the anchor-mark as to be likely to deceive the public? No. Therefore, the injunction was properly refused.

§ 405. Ever since the year 1848, a plaintiff, Baron Seixo,1 had caused his casks to be stamped with his coronet on the top, and with his coronet and the word "Seixo" at the bung; and the evidence shows that his wine has thus acquired in the market the name of "Crown Seixo Wine." When, therefore, the defendants, in the year 1862, adopted as their device a coronet, with the words "Seixo de Cima," meaning Upper Seixo, below it, the consequence was almost inevitable that persons with only the ordinary knowledge of the uses of the wine trade from Oporto would suppose that in purchasing a cask of wine they were purchasing what was generally known in the market as "Crown Seixo" wine.

§ 406. A long and elaborate attempt was made to show that the defendants held a right to the use of the trade-mark which they had adopted. They held, either as owners or lessees, a vineyard adjoining that of the plaintiff, and several small vineyards on the opposite side of the river. "Seixo" means "pebbly" or "stony." Vino de Seixo, therefore, is only the same thing as Vin de Grave, in French, or Stein Wein, in German. . . . "Even

1 Seixo v. Provezende, 12 Jur. (N.s.) part i. p. 215.

assuming the truth of what is contended for the defendants, i.e., that parts of their vineyards are known by the name of Seixo, that does not justify them in adopting a device or brand, the probable effect of which is to mislead the public when purchasing their wine, to suppose that they are purchasing wine produced from the vineyards, not of the defendants, but of the plaintiff. Cases may be imagined, though very unlikely to arise, in which a person bringing into the market for the first time the produce of a newly-established manufacture, to come into competition with one already established, may really be embarrassed as to the mode in which he should describe it, so as not to interfere with the description adopted by a manufacturer who has been before him. If such a case should arise, it must be dealt with on its own merits." Appeal dismissed with costs.

§ 407. A judgment of the Tribunal of Commerce having, so long ago as 1852, decided in principle that the father Garnier, in his own name, and in a representative capacity as procureur of the Carthusian monks, was the sole possessor of the title to the liqueur de Chartreuse, he frequently afterwards found himself involved in litigation in protecting his right. In the Tribunal Correctional of Grenoble, in 1857, came up one of the cases, Garnier v. Berthe. The defendant had made liquors which he sold under the title, liqueur de Grande Chartreuse. His label - which he had duly deposited was on the same colored paper as that of the prosecutor; of the same form, dimensions, dispositions of characters and letters, with mottoes and phrases adopted by the monastery, and certain light clouds which disappeared at a little distance. This could not but cause confusion and error. Worse still, he had printed on his marks the very arms of the Chartreux, i.e., a globe surmounted by a cross. To escape the just consequences of his fraudulent imitation, the defendant set up: 1st. That his liquors were the same as those of the Chartreux, whose secret

1 Annales de la Prop., tome iv. p. 119.

he had penetrated by the aid of magnetism (!), wherefore he called his liquors and elixirs liqueurs et elixirs de la Chartreuse; for, said he, to give them another name would be to deprive them of their special character. 2d. That he could not write his prospectuses in any way not conforming to those of the Chartreux, because his elixirs were similarly composed to theirs, and possessing the same virtues. 3d. That his marks, labels, &c., differed essentially from those of the monastery, because they did not bear liqueur de la Chartreuse, or de la Grande Chartreuse, but liqueur fabriqué à Saint-Pierre-deChartreuse, where he had established his place of business; and that he had on his labels his Exposition medal of 1855, his name, &c. The court was not beguiled with his oily blandishments, but ordered the confiscation of all his liquors and elixirs, and the destruction of his false labels and marks, with a fine of 500 francs, six months' imprisonment, and the publication of his villainy in eight public journals at Paris and other cities.

§ 408. In the Tribunal Corr. of the Seine, in 1868 (Louis Garnier v. Paul Garnier 1), the same name as a symbol of trade was brought into controversy. On certain liquors, seized at the defendant's place at the demand of the plaintiff, was found this title, somewhat changed. The labels of the bottles bore marks of the same form, dimension, and color as those of the monastery of the Chartreux, but with a framing or border a little different, and the inscription, " Liqueur Hygiénique de la Chartreuse," followed by the signature of P. Garnier. Held, an infringement. The fraudulent design of the defendant was manifest from the circumstances. It did not matter that both parties bore the same surname, and that the signatures placed upon the bottles were distinguished by the initials of the baptismal names, and with entirely different flourishes.

§ 409. Upon reference to the case first referred to,— that 1 Annales de la Prop., tome xiv. p. 252.

in the court of Grenoble, in 1852: Garnier et al. Carthusians v. Rivoire, we find that the question from the beginning was in this, Whether the name of chartreuse, given by the Chartreux to the peculiar liquor manufactured by them, had not become a generic denomination that any one could lawfully employ to designate liquors of the same kind. The court decided that the plaintiffs had not the monopoly of the article of manufacture; wherefore the defendant had a right to make and vend a similar article, if he possessed the secret of manufacture, and in default of a name to give it one, even suggested by the resemblance, leaving the public to judge, but that the name of chartreuse must not be employed on labels, unless as a simple term of comparison, as, for example, imitation de chartreuse, the whole in the same kind of characters; or if another denomination were used, the sense should not be equivocal, to draw to the defendant. His custom must depend upon his own merit, without diverting the trade of the plaintiffs, the Chartreux. The reputation of the delicate fluids. seems to have kept the venerable brotherhood in constant litigation. One decision made in their favor affected all the manufacturers of similar articles in the department of Isere and the Rhone; and they combined to prove the name chartreuse to be but generic. They signally failed, on appeal. The court said that the term chartreuse, which is but an abbreviation of the label of the Chartreux, is not a generic name, as would be a name derived from the nature of the liquor, or the substances of which it is composed; and the liquor would not have been so named, but that it had been invented at the monastery of the Grande Chartreuse, and made by the Carthusians; so that the name at once designated the inventor, the maker, and the place of manufacture, and constituted, in each of these particulars, a distinctive mark, a specification which could not with verity be applied to a similar or analogous product of Grenoble, by others. The same doctrine was affirmed

in 1868, in Garnier v. Lindière et als.1 M. Pataille, the counsel for the Chartreux, argued that the composition of the article. made by them is a secret, and even if chemistry could detect the presence of vegetable essences in a liquor, it is powerless to specify, in a complete manner, all the medicinal or aromatic plants entering into the composition, and still less determine the proportions, and the process of manufacture. As a sequence, if one had the right to make liquors more or less approaching in kind those of the Chartreux, no one could say that he made the identical liquor. He contended that therefore no one had the right to copy the idea embraced in the mark. The article not being the same, what right had any one to mislead by a label which implied that the liquor was identical? Then, the difference of price was injurious to the owners of the mark and makers of the genuine article; for the spurious was sold at one-half or one-third the price. The lowness of the price might not deceive merchants, who could not fail to know the cost of the genuine article; but, as to the public, that lowness is only the means of augmenting the sale of the false article. The depreciation of the reputation of the plaintiffs' article should be taken into consideration in adjusting damages.

§ 410. The case of Louis Garnier v. Paul Garnier came up in the Court of Paris, on appeal, in 1870,2 and the judgment of the tribunal was affirmed. The court held, that property in a denomination or a mark is acquired by the first user thereof, independent of all deposit (equivalent to our registration), wherefore the special denomination of chartreuse employed by the Carthusians to designate the liqueurs manufactured by them at their monastery, is, as a trade-mark, their exclusive property. Consequently, they have a right to demand that other manufacturers or dealers be forbidden to use the word "CHARTREUX," or "CHARTREUSE," upon the class of merchandise that they, the plaintiffs, manufacture.

1 Annales de la Prop., tome xiv. p. 225. 2 Ibid., tome xvii. p. 241.