GINTER 'V. 'KINNEY TOBAOCO CO.
(Circuit Court, S. D. NetO York. July Hi, 1882.)
TRADE :M:ARK- cc STRAIGHT
CUT." . The term" straight cut," as applied to cigarettes, is a term descriptive of the ingredients and character,of the article used, and can.not be appropriated as a trade-mark, so as to preclude another from advertising cigarettes made of straight-cut tobacco.
SAME-USE OF TERM TENDING TO DECEIVE. The USIa of a term complainant in a manner
by calculated to mislelld the public in reference to the components or nature of the article to which it is applied, will not be tolerated.
Wm. D. Shipman, for complainant. Charles B. Meyer, for defendants. WALLACE, C. J. So far as appears upon this motion the term "straight cut," as applied to cigarettes, is a term descriptive of the ingredients and characteristics of the article, and therefore the complliinant cannot appropriate' it as a trade-mark and enjoin the defendants from advertising their article as "straight-cut cigarettes." In the preparation of smoking tobacco several different processes of cutting the leaf are employed, and the product is designated by the term which describes the particular process which it has undergone, such 'as straight cut, curly c'Ut,ldng cut, and fine cut. "Straight cut" designates that particular product in which the plant has been so cut and treated at the time of cutting as to preserve the fibers ·16ng, even, straight, and parallel when 'prepared for sale or use. It is stated also that the choicer varieties of the plant are usually selected by this mode' of 'treatment, and the product is especially desirable for cigarettes'. In view of these facts it is evident that when the term is applied to cigarettes it illlpliesthat they are made of' straight-cut tobacco. Tb.e complainant advertises his tobacco as straight cut, curly cut,. etc., but always adds some further appellation, such as Twin Pet straight cut, Perfectionctii'ly cut, etc. In a circular 6f May 1; 1881" he states that his "straight-cut tobaccos are cut. from the choicest varieties of Virginia gold and sun-cured leaf, and are cut to lie straight in the boxes, and are very desirable for making cigarettes." He now insists that the term was selected and has been employed by his business predecessors and himself as an arbitrary designation of his particular article, and that neither his cigarette nor the defendants' are made of straight-cut tobacco. All this, if true, does not.
help the complajnant's but to the contrary furpishes an additional reason why he should be denied the assistance.of a court of equity. Not only has he employed a name to which he Qould pot acquire an exclusive right, but he has used it in a manner calculated to mislead the public, although, perhaps, not intentionally on his part. A purchaser cognizant of the differences in the ,preparation smoking tobacco would legitimately infer that the complainant's cigarettes were in fact made of straight-cut, tobacco. No principles are better settled in the law of trade-marks than that a generic term, or a name merely desc,riptive of the ingredients, quality, or characteristics of an article of trade, cannot be the subject of a trade-mark, anfl that the use ofa name or term which is likely to in reference to the components or nature of the article to which it is applied will not be tolerated. The motion for llr. preliminary injl1nction is denied.
See Burton v. Stratton, ante, 696, Mack, ante. 707, and note 717. note,704;, Shaw Btocktr"iJ 00;''''. '
tI. CITY Oll' PITTSBUll.GH:
'Circuit OO'UTt, W. D. PennsylMnia.
JUly 1, 1882.}
Where an application for·a patent was made and refused; and not till five yeari! thereafter was an amendment of his' application filed and, an effort to obtain its allowance renewed, the delay i3:11'QfIlcient to rai3e the infel'epcf3 of,an abandonment; but if this inaction is explicable consistently: with legal requirement it will not operate to the prejudice of the rights of the inventor. 2.
SAME-WEDGE-SHAPED BLOCKS FOR PAvEMENT.
The laying down of a pavement in the $treets, withwcdgeshaped transverse channels, made of wedge-shaped blocks, described in pateI).t No. 94,062, and according to the method descrilJed in patent No.. 94,063, is an infringement of the patent owned by complainants, assignees of the inrentor.
Where the interference with the use of woodlln pavemeJltscon.tructed ina city, in infringement of complainants' rights, would only operate injuriously on the pulJlic, without benefiting complainants, an injunctio'n will not be granted. '
O. G. Gole and f,Jhas. F. Blake, for complainants. r Nelson Gross and George Shiras, Jr., for respondent.