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expert to distinguish them apart. That much they had a perfect right to do; and if they had gone no further toward imitation, no legal injury would have resulted. But they imitated the boxes used by the plaintiff, with a fancy-paper label similar to his, placed in the same position; took the number " 303" by which the plaintiff designated his pen; and on the bottom of the box placed a “caution" somewhat similar. Potter, J., said, inter alia : These labels and cautions (except the names of the parties) are composed of words in common use in our language, which cannot be exclusively appropriated as trade-marks. True, this selection of boxes, sizes, colors, labels, cautions, and style of lettering, may all be designed to aid in the perpetration of a fraud, and may be the most conclusive evidence of the intent to mislead the public, and to commit a fraud upon the plaintiff in relation to some device of his connected with a trade-mark; yet merely because they are such evidence, or because they have been used with such intent, it does not follow that their use can be legally enjoined and restrained. It is where the person designing to practise a fraud by pirating a trade-mark uses these evidences so connected with the trade-mark itself as to effect a fraud, that he can be reached by the powers of the court. True, also, it is, that it is the right of the plaintiff to be protected against frauds, yet the fraud must be one in relation to a substantial legal right of the party, and protection will not, in all cases, be extended to the mere evidence of fraud alone; and the courts are bound to be especially cautious that in the exercise of the power to restrain injustice they do not encroach upon the public interest, by giving an improper check to a worthy and laudable spirit of enterprise, emulation, and competition in any department of business. It must be admitted that every citizen has the right, if he will, to manufacture and to sell steel pens of any pattern, shape, color, size, state of flexibility, or fineness of point; he may sell them singly or in quantities, on cards or in boxes of large or small size, and with such ornamentation as fancy or interest may dictate; he may imitate any pattern or quality of pen, even if known to be made by any other manufacturer; he may, if he can, make a superior article in material, pattern, or quality, and if he can do so, he has the right to select a device or symbol, as a trade-mark, to designate his manufacture from others : and, if such device or symbol relates to the origin or ownership of the goods to which it is affixed, his legal right to protection is undoubted. Such protection is no restraint upon the freest exercise of talent, enterprise, and competition in trade, but rather a proper stimulant to encourage competition. His superior skill and enterprise give him the right to its profits and advantages, and this is giving no encouragement to monopolies so destructive to the freedom of trade. It may be that in this case the defendant's pen is equal in merit, or even superior to the plaintiff's. This was not an issue in the case. . . . It is no hardship upon the defendants to have them stand upon the merits of their own pen, unaided by the reputation of the plaintiff as a manufacturer, or by the merits of his pen. . . . The design to defraud may be as apparent, and is generally more injurious, in the partial than in the entire imitation. When the trade-mark is a conspicuous device, connected with the name of the true proprietor, of course the imitator would desire to avoid the offence of forgery, and would omit on his own article the name of the true proprietor, and substitute his own.
$ 402. In Walton v. Crowley,' Betts, J., şaid : On ordinary observation, the labels used by the two parties in this case would not be apt to be distinguished the one from the other, – the size, shape, vignette, coloring, and marking being so nearly identical as to make them easily pass for the same ; and the only difference discernible, on considerable scrutiny, being in the name of the warrantor, stamped upon them in letters so small as not readily to attract notice. It is this apparent similitude or counterfeiting which is the grievance complained of A tradesman, to bring his privilege of using a particular mark under the protection of equity, is not bound to prove that it has been copied in every particular. It is enough for him to show that the representations employed bear such a resemblance to his as to be calculated to mislead the public generally who are purchasers of the article, and to make it pass with them for the one sold by him. If the indicia or signs used tend to that result, the party aggrieved will be allowed an injunction staying the aggression until the merits of the case can be ascertained and determined.
1 3 Blatch. C. C. 440.
$ 403. In one case, the plaintiffs, rectifiers of whiskey, had as a brand for their goods the representation of two anchors placed near together in an upright position, the upper parts inclining outward, with a rope attached. Over the device, in a circular form, were the initials “S. Mc.” The device and letters were stencilled upon the heads of barrels containing a particular kind of whiskey known in the trade as “ double anchor," or “ double-anchor whiskey.” They brought suit to enjoin the defendant from using in his whiskey trade an alleged counterfeit in imitation of their trade-mark. The supposed imitation consisted in the representation of two picks placed near together in an upright position, with the handles inclining inward. Between the handles was suspended a pair of balances or scales. The defendant's name was placed over the picks, and the words “ Old Bourbon” underneath ; the whole inscription reading, “ J. H. Garnhart's Old Bourbon.” The defendant stencilled this brand upon the heads of the whiskeybarrels. He used the whiskey thus put up and branded for his mountain trade, and called it “pick brand.”
$ 404. The picks were alleged to be an imitation of the anchors on the plaintiffs' head. That was the only point of resemblance insisted on. In all other particulars the court said that the marks were wholly dissimilar. Currier, J., in delivering the opinion of the Supreme Court of Missouri, said
1 McCartney v. Garnhart, 45 Missouri (IV. Post's R.), 593.
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, 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 liad 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 Frenclı, 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.