. This Ulse has been followed repeatedly See Shepardv. Carrigan, 116 U. S. 593, 6 Sup. Ct. Rep. 493; .Cartridge Co. v. Cartridge Co., 112 U. S. 624,5 Sup. Ct. Rep. 475; Atwater Co.v. Beecher Co., 8 Fed. Rep. 608; Putna.m v. Hutchinson, 12 Fed. Rep. 127; Edgarton v. Manufacturing Co., 9 Fed. Rep. 450; Streit v. Lauter, 11 Fed. Rep. 309. We caunot distinguish the patentee and his counsel, as to what occurred during the pendency of the application for the patent, and the acceptance of it by the latter, as was earnestly urged in the argument. We must regard the patentee as bound by the acts of his counsel, and give effect to them accordingly. The bill is therefore dismissed, at the costs of the complainant.
(Oirc'Uit Court, 8. D. NffID York.
April 19, 1887.)
Col'YRIGII'l'-REGISTERING LABEL.IN PATENT-OFFICE-NoTICE-NA.:r.rE-DA.TJll.
In. Equity.. Suit for infriIigementof copyright. EdwardW. Cady, for orators. Louis a. Raegener, for defendants. WHEELER,.J. This bill is brought upon a copyright of a labelregistered in the patent-office by the orator Higgins, October 27, 1883, numbered 3,693. Act of June 18, 1874, (Sup. Rev. St. 40; 18 St. 78.) The title by which the label is registered is "Waterproof Drawing Ink." The label itself consists of the same words, in one line, in an oblong formedofdQuble lines. The alleged infringement consists of the words, "Waterproof Black Drawing Ink," in three lines, in a similar oblong, with a medallion, at each end of the lines of words, within the oblong. No notice of a copyright by inscription on the labels is given otherwise than by the word and figures" Registered, 3,693, 1883," printed on their face. The effect of this act of congress is understood to be to require the registration of labels in the patent-office, in place of their deposit in the office of the librarian of congress, to copyright them. Marsh v. Warren, 14 Blatchf. 263. No remedy for infringement is given by that act; but the form of the notice, without which no action could be maintained, is so varied that it ma>, be by the word "Copyright,"
the year in which, and the person by whom, the copyright was taken out, instead of a statement of an. entry in the office of the librarian, as before was required. This would enable a notice ofa copyright by registration to be given without the making of a false statement to entry, and make the statutes harmonious. The notice, in one or the other of the forms, was as much requisite to the maintaining of an action as before, and as much when the copyright was by registration in the patent-office as when ,it was by in the office of the librarian. If the word "registered" was the equivalent of the word "copyright," for this purpose, the notice would lack the name of the party by whom the copyright was taken out. The name is expressly required. to the notice by this act, as it has always been required in such notices of copyright. Act May 31, 1790; (Rev. St. § 4962.) And the word "Copyright" has a peculiar significance in such a notice. It carries the meaning of what has been done in a manner that the word" registered" alone does not. The former w:()rdsignifies that the person whose name is appended had the right to copy, while the latter does not tell what had been registered, nor where. The exact form of the notice is prescribed by law, and no equivalent is provided for nor any room for an equivalent left. If specific notice is not given, the right of action otherwise is withheld. All the of law on whicp the right of action rests must be complied with, or:the suit cannot be maintained. Wheaton v. Peters, 8 Pet.591. This notice iS80 defective that the publication of the label with no other was the same in effect as the publication without any would have been. Such a pUblication is practically an abandonment of the copyright. .The orators claim that Higgins was an inventor or discoverer of ink for which he composed this label, and that to some extent the label indicated that ink to which it was applied was his. If these claims are well founded, as they may be, they do not appear to vary the rights of the orators as owners of this copyright. He has no patent for the ink, and the manufacture and sale of that appears to be open and free to all. This device was not legistered as a trade-mark; and, if the orators have any rights to it as such, growingout of its use" they are not in ,any manner involved here now. Trade-mark (hses, 100 U. S. 82. The only right now involved is the exclusive right to copy, and no right of action that appears to remain. These considerations make it unnecessary to consider any question of infringement. Let there be a decree dismissing the bill of complaint, with costs.
(Oircuit Oourt, S. D. New York. April 2, 1887.)
COPYRIGHT-DEPOSIT OF TITLE-PROOF.
Where it is proved that the party claiming a copyright for a song deposited two copies in the mail, and got a receipt from the librarian of congress acknowledging the receipt. of two copies of the publication by its title in full, with the date over the official signature of the librarian, this will be consid· ered evidence that two copies were delivered to the librarian as required by the act of congress. . An edition of a song w"s issued a front cover. with. an enlP'aving a list of seven songs, includmg the song in question, by a part. of its title, over the name of the publisher, who claimed· the copyright, and on the :gage where the music commenced the full title was printed, .with the. words,. 'Copyright, 1878," etc. Held, that this was a sufficient notice to the public of a claim of copyright, as required by act of congress of 1874, l\ 1, and that there was no· abandonment of the copyright. Mrs. Fannie Beane GildlloY held to be the author of th,e musical composition entitled "My Own Sweet Darling, Colleen Dhas Machree."
The copyright of the musical composition entitled "My Own Sweet Darling, Colleen Dl1as Machree." held infringed by the pUblication aD:d sale of a song with music entitled "Call Me Back Again."
InEquity. Charles N. Judson, for plaintiff. William Stone, for defendant.
WHEELER, J. This suit is brought upon copyright No. 13,875, entered on November 27, 1878, by the orator, assignee of Fannie Beane, of a musical composition entitled "My Own Sweet Darling, Colleen Dhas Machree," against infringement by the publication and sale of a song with music entitled "Call Me Back Again." The defenses are, in substance, that Miss Fannie Beane, now Mrs. Fannie Beane Gilday, was not the author of this musical composition; that there is no proof that the orator delivered two copiesof the composition at the office of the librarian -of congress, or deposited them in the mail, addressed to him, within 10 days after publication, as required by section 4959, Rev. St. U. S.; that . the orator abandoned the composition to the .public by publishing it under a different title from that by which it was copyrighted; and that the music of "Call Me Back Again" does not infringe upon the copyright. The defendant has put in evidence a prior composition, entitled "Sweet Spirit, Hear My Prayer," to show that some parts of the music copyrighted were taken from that. There does not appear to be sufficient similarity 'between these two, however, to warrantthis conclusion. There are some short parts of them which appear to be alike; but these parts are not continuous enough, nor sufficiently extended, to indicate with .any degree of certainty that the author of the latter. was guided or aided by the former. Her account of its compQsition.is criticised because of