§ 536. As another example of the judicial suppression of a fancy name upon a shop-sign, we have Chaize v. Fromentelle,1 in the Tribunal of Commerce of the Seine, in 1865. The parties were tobacconists, carrying on business in the same neighborhood. The plaintiff's sign read, "LA CIVETTE" (civet-cat). He had previously been compelled in defence of his rights to attack a certain dame Pousse, who had erected a sign reading, "A la CIVETTE de la rue de Rivoli," and had discomfited her by a judgment of suppression, with 200 francs damages and costs. This time it was the dame Fromentelle who thought to avail herself of the reputation of the plaintiff's wares, by putting up a sign reading, "A la NOUVELLE CIVETTE." As it was plain that her motive was to profit by the justly-gained popularity of the establishment of Chaize, a judgment was rendered similar to that in the other case. § 537. Labels and Wrappers. We will now consider another class of cases, which seem to form a connecting link between those where the good-will of a trade has been protected, and those which may be characterized as relating to trade-marks proper. This is where the advantage in the market (or goodwill) is due either to the name of the trader or trading-firm, or to his or their place of business, or to both these causes combined, but not being, as a good-will, allowed to rest merely in nubibus, is embodied in a label or wrapper, and affixed to the article sold. This name becomes then a quasi trade-mark.2 § 538. Croft v. Day is a very important case under this head. The quasi trade-mark there consisted in the name of Day & Martin, and their address, 97 High Holborn, with other devices on a printed label attached to the bottles of blacking made by the plaintiffs, the executors of the former firm of Day & Martin, and then carrying on the same business. This was so closely imitated by the defendant as to afford the fair presumption that he intended the public to be deceived into 1 Annales de la Prop., tome xi. p. 350. buying his blacking as and for that of the original firm. The Master of the Rolls, in his judgment, observes that the act complained of was equivalent to a sale by the defendant of his goods as those of the plaintiffs, and that two things were requisite for the accomplishment of this fraud. First, a general resemblance of the forms, words, symbols, and accompaniments, such as to mislead the public; secondly, a sufficient distinctive individuality was to be preserved, so as to procure for the person himself the benefit of that deception which the general resemblance was calculated to produce. - In Coffeen v. Brunton,1 the defendant, in combination with others, fraudulently issued to others a preparation called "Ohio Liniment," having upon the bottles containing it labels with directions exactly similar to that used by the complainant for his "Chinese Liniment;" and he made representations to induce the public to believe that the composition sold by him contained the same ingredients as the "Chinese Liniment." McLean, J., said that from the body of the label and of the directions for the use of the medicine, it was clear that the language of the defendant was so assimilated to that of the plaintiff as to appear to be the same medicine, the alteration being only colorable, and was intended to avail himself of the favorable reputation acquired by the "Chinese Liniment." An injunction was granted to enjoin the defendant from using the labels or directions accompanying the liniment sold by him, or other labels or directions or advertisements or hand-bills tending to produce a false impression in the public mind that the liniment sold by him contained the same ingredients as the "Chinese Liniment." (It should be noted that this case is frequently referred to as one of trade-marks, but improperly so. word "Chinese was the only symbol capable of exclusive appropriation, and that was not pirated.) The Merrimack Manuf. Co. v. Garner 2 case belongs to the label class. In that, the plaintiff's label was "Merrimack Prints, Fast Colors, 1 4 McLean, 516. 92 Abb. Pr. R. 318, and 4 E. D. Smith, 387. The *Lowell, Mass. ;" and that of the defendant, "English Free Trade, Merrimack Style, warranted fast colors." The court, in bane, dissolved an injunction which had been granted at special term, and left the parties to try the issue of an actual imitation involving the question of fraudulent intent and actual injury. So, also, does the case of Dale v. Smithson1 belong to the label class. The plaintiff affixed to each package of thread sold by him a label, reading as follows: "Courtria Flax. Thomas Nelson & Co. Warranted. Warranted. Fast Colors & 16 Oz." What word or symbol is here to constitute an exclusive emblem? "Courtria" might possibly, if it were a fancy denomination, and not descriptive. The defendants adopted and used in a similar manner upon their thread a label so closely imitating that of the plaintiff as to leave not the slightest doubt of the intention of fraud. The judgment of the judge at special term granting an injunction was, therefore, affirmed at general term.- Newman v. Alvord 2 is nothing more than a label case. Both parties used the word " Akron," the name of the place where the plaintiff had a manufactory, and the defendants had not. The name "Akron" being a mere geographical designation, could not be exclusively appropriated, for the reason that all inhabitants of the place had a perfect right to affix it to their goods. But as there was no room for doubt, in the mind of the court, that the said name was used by the defendants to enable them to avail them selves of the patronage justly belonging to others, an injunction granted at special term was sustained. — Falkinburg v. Lucy3 is a label case, although frequently miscalled a trademark case. Sawyer, C. J., said: "Can there be any doubt that the verbatim copy of the entire label of plaintiff, except the heading, the name of the maker, and place of manufacture, and adopting it as the label of the defendants, was done for the purpose of inducing the public to believe that the defendants' was precisely the same thing as, and pos 1 12 Abb. Pr. R. 237. 2 49 Barb. 588. 8 35 Cal. 52. sessed the identical properties of the compound manufactured and sold by the plaintiff, and for the purpose of availing themselves of the reputation established by the plaintiff?" It was sought to protect an elaborate label under a statute of the State of California, including "any peculiar name, letters, marks, figures, or other trade-mark or name, cut, stamped, cast, or engraved upon, or in any manner attached to or connected with any article, or with the covering or wrapping thereof," &c. Comprehensive as is the language of the statute, and palpable as was the imitation of the plaintiff's label, yet the Supreme Court of California held that the label contained no peculiar names, marks, &c., in the sense of the statute which the defendants had copied; nor was the plaintiff entitled to any protection of the words in common use in our language which composed the profusely-worded label. The injunction granted below was accordingly dissolved. The case of Boardman v. The Meriden Britannia Co.,1 in the Supreme Court of Connecticut, in 1868, is a fair illustration of the protection which courts award to a mere label, which has been fraudulently imitated for the purpose of diverting custom from its legitimate channel. The labels used by the respondents were of the same size and color as the labels of the petitioners, and the same numerals were used for the same class of goods. The petitioners' label read thus: "1-2 Gross L. Boardman's No. 2340 Wire Strengthened, French Tipped Teaspoons;" and that of the respondents read: "1-2 Gross Meriden Brita. Co.'s No. 2340 Wire Strength'd, French Tipped, Oval Thread Teaspoons." Both parties seem to have regarded the use of the numerals 2340 as giving rise to the most important and most material question in the cause; but Carpenter, J., in delivering the opinion of the court, said that whether in any case numbers alone may be legitimately appropriated as trade-marks, was a question not necessarily involved in that case. It is apparent, at a glance, that neither of the 1 35 Conn. 402. labels contained a single essential element of a technical trademark, although the court loosely used that convenient term. From the finding of facts, we can judge for ourselves of the class to which the case belongs. It was found that the respondents manufactured "spoons similar in character to those made by the petitioners, though differing somewhat in style and pattern, and prepared labels resembling those of the petitioners, and adopted the same numbers as had been adopted by the petitioners, adapting said numbers to similar kinds of spoons." We can classify the case as one of unfair competition in trade by means of a simulated label. A remedy was due, and the court awarded it. The court said: "Have the petitioners suffered damage? On this point, there is no room for doubt. The finding of the committee is explicit, 'that said respondents have sold large quantities of their spoons so put up, in place of spoons manufactured by the petitioners, as alleged in the petition.' It is also apparent, from what has already been said, that the petitioners are in danger of still further loss, unless protected by an injunction. The circumstance that the respondents now prefix a cipher to the numbers would hardly vary the result. Their motive is apparent. They may succeed in reaping some advantage from the numbers as thus used, but it is manifest that it will be at the expense of the petitioners." All the judges concurred in giving judgment for the petitioners. § 539. As to the right of property in the name of another, we have a case in the Court of Besançon, in 1861,— Lorimier & Bovet v. Dubois.1 The house of Bovet, of Fleurier, a village of the canton of Neufchatel, in Switzerland, manufacturers of watches for exportation, especially to England and China, authorized M. Lorimier, a watchmaker at Besançon, in France, to use the name of "Bovet" as a trade-mark. Lorimier duly deposited the said name as his trade-mark. By authority of his right to use the same, he seized certain watches, then at the custom 1 Annales de la Prop., tome viii. p. 297. |