cotton by a person to whom it did not belong, who gave an order upon the warehouseman with whom it WaS stored. Subsequently, the warehouseman, with the consent of the true owner, gave to the corporation an ordinary warehouse receipt for the cotton. The court held that the true owner, having consented to the issuance of the receipt by the warehouseman, should be held to have assented to the "pledge; that the corporation had a right to repose upon the receipt as evidence of the pledgeor'S title; and that its position was altered by relying on the receipt, because if it had not been given the corporation might have resorted to process for the recovery of its loan; and that the true owner was estopped from claiming title to the cotton. These authorities justify the conclusion that, notWithstanding the defendants had already parted with their money, and had no legal redress against the complainants at the time they presented the spurious certificate for surrender, they may insist upon an estoppel, because their situation was altered by the act of the complainants in recognizing the validity of the certificate, and in consequence they were induced to forego the remedy which they could otherwise have adopted to save themselves from loss. The bill is dismissed.
((Ji!rcuit Court, D. Maasachusett8. May 5, 1886.)
Soap packed in a box, with alternate red and yellow wrappers, so as to produce a representation of a trade-mark of the same combination of colors, is not an infringement of that trade-mark.
SAME-WHAT WILL BE PROTECTED.
A peculiar method of arranging soap in a box is not a trade-mark which can be legally registered.
In Equity. Motion for preliminary injunction. W. B. H. Dou'se and E. B. Hale, for complainants. T. L. Wakefield, for defendants. CARPENTER, J. This bill is brought to enjoin certain alleged infringements of the trade-mark of the complainants, registered June 2, 1885, and,numbered 12,279. It appears that the trade-mark of the complainants, and also the alleged infringements thereof, are used in commerce with the Dominion of Canada. 'fhe trade-mark is described as follows in the statement annexed to the certificate of registry:
"Our trade-mark consists of a label bearing a representation of the device or design produced by thE' means and arrangement used by us in packing our 9akes or bars of soap in boxes. We fold each cake or bar of soap in either a
DAVIS 11. DAVIS.
red or a yellow wrapper, and pack the cakes or bars thus folded in a box, so that the red and yellow wrappers alternate. *. * * As the label is a reproduction of the appearance which the soap presents when packed, as described. in a box, it is obvious that bars 01' cakes of soap simply wrapped ana arranged in a box, as described, is one method of producing our trade-mark, * * * the essential feature of which is the device produced by the combination and alternate arrangement of red and yellow spaces, substantially as described."
This trade-mark, altbough, in the words of the statement, it "consists of a lahel," is not attached in any way to the soap sold by complainants. In practice the label is made of the same size as the box of soap, measuring on the inside, and id placed in the box on the upper layer of bars of soap, and is by the retail tradesman taken out, and used as a show-card. The complainants allege that the respondents infringe this trademark in two ways: First, they give to their customers a shallow box containing cakes of soap of the same length and breadth as those sold by them, but much thinner, and inclosed in red and yellow wrappers, and arranged alternately by colors, as in the drawing of the trademark. This shallow box is exposed to view by the retail tradesman, and serves the purpose of a show-card advertisement. The trademark of the complainants, therefore, is a representation, or, if the word may be allowed, a picture, of the top of an .open box of soap. It seems entirely clear to me that such a trade-mark cannot be infringed by the use of a real box of soap, of whatever size or shape, or whatever may be the color or arrangement of the wrappers. It seems to me to be impossible to say that any physical object can be, in the nature of things, a colorable imitation of a picture or representation of that object. Still further, it is to be observed that there is a very great difference in appearance between a box of soap, and a printed label representing the upper layer of soap therein contained. The most careless observer could not confound one 'with the other. I therefore conclude that there is no infringement by the use of the advertising box, unless, indeed, it be an infringement of the rights of the complainants to sell soap wrapped in red and yellow wrappers, arranged alternately in the box in which it is packed. But the complainants claim, in the second place, that their trademark is infringed by the sale of soap wrapped and arranged in boxes in the same manner used by them. Undoubtedly the terms of the statement are broad enough to cover the boxes of soap sold by respondents. The statement expressly says that "bins or cakes of soap simply wrapped and arranged in a box, as described, is one method of producing our trade-mark." But I am of opinion that the registration, in so far as it can be interpreted to cover the sale of boxes of soap, is entirely void, for the reason that the object or thing thus included in the description is not such a thing as can lawfully be regis some arbitrary or repreistered as a trade-mark. A sentative device attached to or sold with merchandise and serving to
designate the origin or manufacture of that merchandise. I do not think that the merchandise itself, or any method of arranging the various packages, can be registered as a trade-mark. In the very nature of the ease, as it seems to me, the trade-mark must be something other than, and separate from, the merchandise. It is not, of course, claimed that the colors used in the wrappers can be in themselves the subject of a trade-mark registration; nor is it claimed that the wrappers themselves constitute the trade-mark. The claim is that the trade-mark consists in the arrangement of the colors in the wrappers. This seems to me to be no less than a patent for an idea, under the guise of the registration of a trade-mark. I do not think that, in any possible view, the claim can be sustained. There is evidence, also, which makes it most probable that the method of packing soap in alternate red and yellow wrappers was ado.Jted by B. T. Babbitt, of New York, at about the same time it was adopted by the complainants. Taking that view of the evidence which is most favorable for the complainants, it appears that for about four years before their application for registration Babbitt had used the alleged trade-mark without objection or interference. The complainants, indeed, produce samples of the boxes of soap sold by themselves and by Babbitt, and they point out that the colors used by Babbitt are of widely different quality and shade from those used by themselves. Undoubtedly the colors used by Babbitt are pale and dull, and those used by complainants are strong and bright. But Babbitt uses red and yellow, and the statement of the trade-mark specifies no particular shade or quality of color. It would be, I think, difficult to sayan this evidence that complainants had the exclusive right to use their alleged trade-mark at the time they made application for registration. The motion for preliminary injunction will be denied.
'V. ASTRAL REFINING
Co., Limited, and others.
(Oircuit Oourt, w: D. Penn8l1lvania. April 30,
On.. " The appropriation of the word" Astral, " in a combination of words constituting a trade-mark, does not preclude its use in all other combinations formed for the like pnrpose. Held, therefore, that the plaintiff's trade-mark, "Pratt's Astral Oil," applied to refined petroleum, was not infringed by the use of the words "Standard White Astral Oil" to designate the defendants' refined Deleum.
2. SAME-KNOWN USE OF WORD.
An oil-burning lamp called the" Astral Lamp" having been long well known, and in common use, IJcmble, that the word" Astral" was without the range of lawful appropriation as a trllke-mark for retined petroleum.
PRATT MANUF'G 00. f1. ASTRAL REFINING CO.
Relief will not be granted against the use of a brand which points unequivocally to origin, and, except in the common use of the words Astral Oil, " 80 differs from the plaintiff's brand that purchasers will not mistake the one for the other.
c. Heydrick, for complainant.
J. W. Lee and
Carey, for respondents.
ACHESON, J. This is a suit by the Pratt Manufacturing Company, a corporation of the state of New York, against the Astral Refining Company, Limited, a partnership association formed under the laws of the state of Pennsylvania, and the managers thereof, to restrain the defendants from using the words "Astral Oil," either alone or in connection with other words, as a brand or mark upon packages of refined petroleum, and from the use of the word" Astral" as part of their partnership name; and also to compel the defendants to account for the profits on refined petroleum so branded, sold by them; the plaintiff alleging such use of said words or word to be an infringement of its trade-mark. It appears that Charles Pratt, who carried on the business of refining petroleum in the state of New York, in the year 1869 adopted as a trade-mark in his business the words "Pratt's Astral Oil," whillh he continued so to use until the year 1874, when he transferred his business and his right and title to said trade-mark· to the plaintiff company, which has since continued the said business, and' the us.e therein of said trade-mark,-the plaintiff having, on October 25, 188:i, obtained registration of said trade-mark agreeably to the provisions of the act of congress of March 3, 1881. 'fhe bill alleges that the . plaintiff "has, at great expense, introduced the particular grade and quality of refined petroleum manufactured by it into the market, not only of this country, but of foreign countries, under the nam,e 'Pratt's Astral Oil,' by which name your orator's product long sin<le became and now is widely known." The e\'idence, however, shows that in actual practice the plaintiff does not designate its refined petroleum by the words "Pratt's Astral Oil" simply, but by a brand of this character, viz.: Within a circular border, and following the upper arc of the circle, are the words" Pratt's Astral Oil;" within an.d following the lower arc of the circle is the word" New York;" above "New York" are the figures and word "46 Broadway;" and in the ceater of the circle is a peculiar device or design, beneath which is the word "Trade-mark." The refinery of the defendant company, which is situated on the Allegheny Valley Railroad, near Oil City, Pennsylvania, was built, and the name "Astral" given to it, about January or February, 1881. While the works were in course of erection, the railroad company established a station at that poiut, and called it Astral; and on April 28,
1884, .& post-office of the same name was established there. About April 1, 1884, the limited defendant was organized, and purchased said works, and has since operated them. It is satisfactorily shown that neither the parties who originally applied the word" Astral" to these works, nor the defendants when they adopted it as part of their partnership name, had any knowledge whatever that the word was used by the plaintiff. Upon the heads of their petroleum barrels the defendants' 'brand, in circular form, the words "The Astral Refining Company, Limited, Oil City, Pa.;" and in the center of such circle are the words, "Standard White Astral Oil." This is the entire brand, and the whole is in large and conspicuous letters. Such being the material facts of the case, is the plaintiff entitled to the relief sought? It will be observed that the plaintiff in effect claims an exclusive property in the use of the words" Astral Oil," as applied to refined petroleum; and also in the use of the word "Astral," as applied to the business of refining petroleum. Can this pretension be sustained? I think not. In the first place, I strongly incline to the opinion that the word "Astral" was without the range of lawful appropriation as a trade-mark for refined petroleum by reason of the fact th,at long before it was employed by Charles Pratt the appellation had been given to an oil-burning lamp well known and in common use. Now, very naturally, the public might associate the words "Astral Oil" with the "Astral Lamp," and thus the exclusive use of those words as a trade-mark would have a tendency to give the plaintiff an unfair and hurtful monopoly in contravention of that rule of la w which forbids the use of anything as a trade-mark which would destroy competition. Oanal 00. v. Olark, 13 Wall. 323. Then, in the second place, the appropriation of the word" Astral" in one combination of words does not preclude its use in all other combinations. Such was the determination of the supreme court of Pennsylvania in respect to the word "Samaritan," as applied to compound Appeal, 13 Wkly. Notes Cas. 303. medicines. The plaintiff's trade-mark consists, not of the word "Astral" alone, nor yet of the two words "Astral Oil." The prefix "Pratt's" is the distinguishing word in the plaintiff's combination, and, in truth, is indispensable; for, according to the averment of the bill, it is by the name "Pratt's Astral Oil" that the plaintiff's product is known in the markets of the world. Is it credible that purchasers possessing ordinary intelligence, and observing reasonable care, would confound "Standard White Astral Oil" with "Pratt's Astral Oil"? Moreover. the plaintiff's packages of refined petroleum are designated by a peculiar brand of which the said name forms a part. Now. the brand used by the defendants is not in imitation of the plaintiff's, but essentially differs therefrom. Indeed, it seems to me to be quite impossible that any purchaser would mistake one for the other. The brand of. the defendant company. so far from tending to mislead buyers,
RICHARDSON tI. COUNTY OF GRANT.
points directly and unequivocally to the origin of the contents of the packages. There is not 8 particle of proof that the defendants have attempted topractice deception upon the public, or to perpetrate any fraud upon the plaintiff; but, on the contrary, the defendants' entire good faith is affirmatively shown. There is, then, no ground whatever for granting relief to the plaintiff. That the bill must be dismissed, is a conclusion in consonance with well-considered and authoritative decisions. De8mond'8 Appeal, 8upra; Gilman v. Hunnewell, l22 Mass. 139; Manufacturing Co. v. Trainer, 101 U. S. 51. Let a decree be drawn dismissing the bill, with costs.
«(}GrMtit (Jowrt, D. Indiana. December 28, 1883.)
MUNICIPAL CORPORATIONS -ILLEGAL CONTRACTS MERUIT. LIABILITY ON QUANTUH
Municipal or public corporations are not liable. on the quantum 'TMT'Uit, for the value of materials furnished under illegal or forbidden contracts, when the municipality cannot choose whether or not it will retain or reject the benefit of such work or materials.
SAME-COUNTY BOARDS IN INDIANA-CONTRACTS FOR CONSTRUCTION OF LIC BUILDINGS.
Contracts for the construction of court·houses and other public structures, to cost more than $500, unless let to the lowest bidder upon plans and specifications theretofore adopted,being forbidden. the county will not be held liable for the value of a court-house constructed, upon public ground, under a con tract made in disregard of the statute, notwithstanding the use of the building by the county. The statute which forbids contracts for the construction of county buildings to cost more than $500, unless made with the lowest bidder according to plans and specifications, applies to contracts for parts of such structures; and If, in the course of construction under a legally-made contract, any alteration or addition to the plans. exceeding $500 in cost, 'is made without specifications and bids, the county will not be liable for the price or value thereof.
SAME-ALTERATION OF PLANS IN COURSE OF CONSTRUCTION.
At Law. McDonald, Butler II Mrrson, for plaintiff. Harrison, Miller II Elam, for defendant.
WOODS, J. The complaint charges an indebtedness of the defendant to' the plaintiff in the sum of $24,001), for materials furnished, work and labor done, skill bestowed, and money paid out by the plaintiff, at the special instance of the defendant's board of commissioners, in the construction of a court-house for the defendant. A proper bill of particulars is filed, and it is,averred that the board of commissioners for the county, has received, and is in the enjoyment,·of, the said work and labor and materials. The fourth paragraph of:auswer