and others v.
(Gjrcuit Gourt. B. IJ. NMD
'l'BADlC·MARXS-INFRINGEMENT-" KAISER " MINERAL WATER. '
In Equity. -Bill for injunction and account. W. H. _0'Dwye:r, for complainanti3. Louis a.Raegene:r, for defendants. WALLACE,J. The complainants registered in the plitent-office,July 11, 1883, theWQrd'" Kaiser,)' asa trade-mark for natural'mineral water. They adopted the name as eaTly as in 1878, ahd at the' :tiriie of registration had used it, and have used it since, in foreign commerce, selling their mineral water in bottles labeled." Kaiser Natural Mineral Water," with the words "Kaiser Water; Schwalheim," blown in the glass. The defendants sell minersl water in bottles labeled "Kaiser Water, Birresborn Natural Mineral Water." The bill is filed for an injunction andacconnting. Both parties are citizens of this state, and for that reason this court can entertain jurisdiction only upon the theory that the complainants have a valid trade-mark in the word registered, pursuant to tlie act of congress of March 3, 1881, and norelief can be granted because of any nnlawful competition in trade by the defendants with the complainants. The question,therefore, is whether the complaints have the exclusive -right to appropriate the word" Kaiser" as a trade-mark for natural min. eral water. , It is in .proof that long before the complainants adopted the word as a trade-mark there were a number of springs of mineral waters located at different -places in Europe known by the name of" Kaiserquelle " or "Kaiserbrunnen." The English translation of these names is" Kaiser spring;" "Kaiser fountain." Several of them were in Germany. One was at Aachen, the waters of which were celebrated, and were in extensive demand in Europe, and had been sold in bottles labeled" Aachen, Kaiserquelle," and "Kaiserbrunnen," by the municipality of Aachen. These springs took their name from the sovereign ofthe country, and. except when the name of the place of location was used in conjunction with tbe name ofthe spring, the word" Kaiserquelle" or" Kaiserbrunnen" did not indicate the origin or the characteristics of any particular water. Upon these facts it must be held that the complainants' selection of a
trade-mark is open to the objection that they have adopted a name which is descriptive of natural mineral waters that others had a prior right to sell by the same name, and Il).ore especially those from the springs of Aachen, the waters of which had been introduced totha public, sold, and became well known by tl:l;e name of "Kaiserqnelle" or" Kaiserbrunnen." The municipality of Aachen has certainly the prior right to use, as a trade-mark, a name which, when applied to mineral waters, signifies the waters of its own spring,-the Kaiser spring of Aaehen. Congress & Empire Spring Co. v. High Rock Congress Spring Co., 45 N. Y. 291. To entitle the name to equitable protection as a trade-mark, the right to its use must be exclusive, and not one which others can employ with as much truth as those who adopt it. funal Co. v. Olark, 13 Wall. 311. As against the complainants, it would clearly be legitimate for the owners of any of the Kaiserquelle waters of Europe to sell them in this country, or in England. by the name of the Kaiser spring waters, or to sell them anywhere by a name which in any language would signify to tho purchaser the true name of the article, and be descriptive of its origin and ownership. Kaiser spring waters and Kaiser Water, when used to describe natural mineral waters, mean the same thing; and the essential identity between the name adopted by the complainants, and that which others had a prior right to use, is not changed by omitting the word "spring." That word would be inevitably associated by a purchaser of the article with the rest of the name. If the complainants had adopted as their trade-mark the compound word" Kaiser water, Schwalhelm," it is quite likely they would be entitled to protection. As it is, the bill must be dismissed.
THE DAYLESFORD.1 LE BARON,
(DiBtriet Oourt, B. D. Alabama. March 14,1887.)
NEGLIGENCE-PERSONAL INJUlUES-LIABILITY 01' VESSEL FOR INSECURE PROACHES-CONTRIBUTORY NEGLIGENCE.
In cases of maritime tort, courts of admiralty are not bound by rules of the common and civil law governing cases of contributory negligence, and in suits for personal injuries contributory negligence on the part of the libelant is not a bar to his recovery, and will not cause the denIal of relief to one whose negligence may have contributed to his injury.1I Where one has the right to use a ladder as a means of descent from the ship to the wharf, the vessel owes him a duty to see that it is properly secured and, if personal injuries are caused by the negligence of the ship's crew this regard. the vessel will be liable therefor.
JReported by Theodore M.Etting, Esq., oithe Philadelphia bar. suits admiralty for injuries, negligence. on the part of the hbelant IS not a bar to bls recovery. The admIralty rule, apportIOning damages! when both parties! are at fault, extends to all cases of maritime tort occasioned by con. curring negligence. The Max Morris, 28 Fed. Rep. 881, and note.