set in motion by "professional witnesses." If theqt!icers of the revenue, or thj'llaw officers of the government, do not deem the cases of sufficient instit1,1te and, follow up prosecutions, commissioners, who are officers, ,and duty it is,to hear cases "\Vhen,they are should not, directly or indirectly, instigate or countenanpe others in bringing criminal proceedings. Much less should they permit such cases to' be brought by a class of men who Mtmerely from mercenary motives, and cannot bE} expected to exercisejudgment or good sense in discriminating betweenl'e;aland technical violations of the law. The orde;r to show cause is discharged.
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((JVrcuit Otwrrt. N.D,. Ohio, B. D. April
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1,TltM>E:.MAIrK':'"WHAT IT :MAVCoVlllR.
of eh.ewing.gum canno.t Ob.tai1l8.trad.e.m.ark forth.etor!l1 . 9f in whic;:h the guxp. is maje. nor for ,the peculiar shape and , .ration of the boxes 1U which It ill put upon tlie market, nor for the particular manner in which the gum. is arranged in the boxell. ., " ., ' . . .,'. " of gum filed thllir declaration to fo\low,iP:g effe'ct: "Our trade-mark consists in the word' Bappots.'Thlll has 'genetallybeen arranged * * * in ornamental block letters, 'printed· in fli,nkj,gradually increasing in depth. of color from letter ' B' to inclined line. and in connection the word 'Tolu/Abov,a 'iigllt-l\.and part of the wotds '-Sappota Tolu ' III the word'AdaIils;' and beloW fthefuft-hand part are the words 'Chewing Gum;' but other forms .of, type JJJl!oY b,ellm.P.lo y e<l, or,itm. YJ?\l ,diff. ..._ I pr colOJ,"ed, 0.'r'the. ",ords ''f0lu,' ',Adams,' and' Che'Ymg Gum' may be omItted or changed at pleasure, wttho:ut altering the character of our trade-mark, the essential featttre,of,wJuch IS the,wora 'Bappota.'» Held, that the tradEl-mark , to the name adopted, with the form and color ,of the letters ul\ed.in the , 'label on the inllide of the lid of the paper box;, and thBt it (:ould not be'broadened; for the purposes of 'a suit for infringement, 80,as to eoverthe whole box, with .1'11 its ornaments and forms of putting up the gum; coJors,usedin such d.ecorationll. S. BAMm-:-NA1IES-INFRINGEMENT. 'fbe vending of a variety of chewing gum under the name of "Heisel'a Elas- . TOlU tic Tolu» is not an infringement of the trade-mark" Adams' CJ1ewin,g .Gum,» the similarity and resemblance between the two llamas not being such as to deceive a purchaser in buying the first for the second. .
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In;Chancery. Oharla P. Jacobs, for complainants. E. SdWIYf8 and E. S.Blandin, for respondents.
WEJ,KEB, J. The complainants allege thataboutthe year1884, while in the city of New York, they commenced the preparadoing tion, ,manufacture; and sale ofa certain form of.chewinggumi and that which was wholly they inVented and composed therefor original with themselves,viz., "SappotaTo11,l," and describe, how they P1,lt up the gum, and the boxes in which with letters and .and ,borders upon, boxesj pictorial ornaments, with.
and that they have continuously used the said trade--m ark, and put upon market their gum in boxes labeled and decorated as desCribed; and allege that the defendant is using their trade-mark; and ask an injunction against the defendant to restrain him from Buchuse, and a decree for damages. The defendant denies the use of said trade-mark, or its infringement. The first question tosetHe iS,what is the complainants' trade-mark? They insist that the name of "Snppota Tolu," printed ontheinside lids of their noxes, -as w.ell as the fottn -and decorations of their boxes, and the manner of putting up for IIlarketoftheir chewing gum, altogether constitute their trade-mark. If that be so, then the defendant has infringed all of said indicia or parts of the complainants' trade-mark except the name of the manufactured chewing gum, and. the name of the man,,', .. ufacturer thereof. It is well _ that a person cannot obtain _ m0!10poly incident the to a trade--mark mere formof'a vendable cointhodity that may be adopted. In this case the complainants could not obtain a trade--mark for the form'()fthesticks of they migh.tmanufacture, nor -by the. ¥se of. a form of the boxes they Qi:ty use to hold the sticks of gum, nor in the manner in which 'the gum might be placed in the boxes. These qualities and forms are common to the manufacture, and may beinade similar, without iJ;ljury to others who may use the sameforms. Thecornplainants must, therefore, ,be restricted in their to some well-defined and specific name or. device that may and -aoes designate and distinguish their product of Chewing gull). frotnthose of other manufacturerso£ a like article,and for like purof the nltme of the manufactqrer, printed, poses. This m,arlpnay branded, orsta1l1ped ina mode peculiar to itself; .or a seal, a letter, a cipher, a monogram, or any sign or symbol, to so distinguish it as their product. rrhese symbols and emblems, bY"continued use, tnay be recognized in trade as the mark of the goods of a particular person; and when so adopted and used may constitute such a property as that no other manufacturer or trader has a right to affix them to .g'Oods of a similar description and character. In other words, that would authorize such manufacturer to have the exclusive use of such marks of his goods, and fit the use of which he may be protected against all infringers thereof. What is a trade-mark? A "mark" means to make a visible sign upon something; to affix a significant mark to; to draw, cut, fasten, brand; a token upon, indicating or intimating something; to affix an indication to; to attach one's name or initials to. Webst. Diet. A ',trade-mark, therefOI'e, cons!sts of the use in trade. of such a mark, placed upon goods manufactured by a particular person and placed in market with such maiJrs, for sale and trade. The,' complainants undertook,in 1885, to put upon record in the of the United States, under a partietHar statute authorizing"itl() be done for special purposes, what they claimed to be their trade-mark for the manufactured product. In that application they describe, as they were required to do by the statute, in what their trade-mark consisted. They say:
AJ.}AltJS ". HEISEL.
"Our trade-mark consists in the arbitrary word ·Sappota.' This has generally been arranged as in the fac-sindle, in which it appears in ornamental block letters, printed in pink, gradually increasing in deptr. of color from the letter ·S ' to the letter · A,' on an inclined line, and in connection with the word ·Tolu.' Above the right-hand part of the words ·Sappota Tolu ' the word ·Adatns,' and below the left-hand part are the words ·Chewing Gum,' but other forms of type may be employed, orit may be'dl.fferently arranged or colored, or the words ·Tolu,' Adams.' and ·Chewing Gum' maybe omitted or ohanged at pleasure, without materially alteriugthe character of our trade-matk, the e!ilsential feature of whicQ is, the word ·,Sappota . ' ' ' ' , In the same declaration they also say, "We have adopted for' our ,use a trade-mark of chewing gum of which the following is a specification," describing it as above; and they also say that" this mark has been used , continuously in business by us since 1878." Althougpthe filing of this' declaration in the patent-office under the stat\]te gave these complainants no new rights for the purposes ofthis suit, ·and did not itself give them any rights, only as thE> them, and does not in the least affect their rights to, or remedies cormected with, the right of a trade-mark, yet it does very, clearly show what, at that time, and before and since, saidapplication was regarded by the complainants as their trade-mark, in what it specially consisted, and by.which declaration and description thei!; trade-mark 'must be undi'lrstood to have been adopted as so described. The complainants cannot D(jw so broaden and' enlarge their trade-mark as to cover the whole' box, with all its ,and forms of putting up the gum, and the colors used in such decorations, and vent' others frbm using these forms of putting up gums for sale. The trade-roark, then, being confined to the name adopted, with the form and color of the letters used in the printed, label on the inside of the lid of the paper boxes as set out in the exhibit of their boxes, does the respondents infringe such trade-mark? He does not use the name of "Sappota Tolu," but that of "Elastic Tolu." He does not use the name of" Adams," but that of "Heisel's;" nor does he use the arrangement of colors used by the complainants. There is agenera! similarity of the boxes, and the form of the decorations, and arrangement of the, gum in the boxes; but, as these do not constitute the (lomplainants' trade-mark, this use does not constitute any infringement. In the exercise of reasonable care by a purchaser, to ascertain whether the complainants manufactured the gum said to be placed on the market by the defendant, and resembling it, no purchaser need be deceived in purchasing gum called "Elastic Tolu" for "Sappota Tolu" chewing gum. Such similarity and resemblance, being the test of infringement· of a trade-mark, do not appear to that extent in this case as to authorize a decree for injunction, or any relief. The bill is dismissed, at costs of complainants.
JACKSON, ,J., having concurs in this decree.
with me this case at chambers, fully ,
, lIILI.V.SAWYER :,
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..,-NOVEJ;,.n-. .. .
P.l'/6'U!'York. June 17,1887.)
2. BAlI:il::"":OoMBi'N'ATIQlf-CoNsTRucTloN, '
,Let\ers No. 186.862 were gfallted January 2; 1877, to Benjamin B. HUl, fo,," an, impl''Ovement in the object oftbe'invention being the' proiluctlon 'of schaap hand-stamp in which the year, month. and day might 'be printed to represent any given date. The invention consisted ofa BtI\W,Pthl!' of wa,s JIlade in two .A series of rolls were arranged Within the 'case. and there was a fixed bridge at the lower end. Endless tubber bands passed :&1!ound these rolls, and ,also/around and over the By turning: the rolls inoue ,dlrectip!!, the letters upon the bands were successively brQught'tnto pOSitIOn for prmting, and supported there by the square edge at the'1X>ttom of the bridge·. The inventIOn also, rolls, wheretheJ>\londs had their consisted of ,an:annularracl\ss bearing, tWll,d, with, a liubstancll "lllcJ;! wOj1ld.adhere..to'theOands, an.d thus increasetractron,prllvent slipping, alld aid in bringmg the characters upon the roUs'into, the'proper for: printing. It appeared that ,each ele-, ment of tbe cOlQbinatiQn W&$ 1qliown in t,he prior to the invention, but the, combilj1llotlPn inqu,estion, in its entirety, had never been produced. It also' appeared that the Invllntion had been 'received by the d.·ade- .as a patented artICle, and l1ad l1een Jprevioualy recognized as such by the, defendant, who wall contestil,lg .Held, patent was not void,: for want of pat· ; ,. " , "
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'Whereall'!tIle' "Of acomblhstion are' old ini art,buts patent is grantedfOf the of. which depends , upon noyeltyQf, s1Jch patent!le will pe confined striCtly to tl;le, combmatlOn described. and'clll.imed by hun. .'
Where several' Jpatenta exietforcom,pfnations, all producing the Bll,me re, I ,l!)llts, but in Of .pombination, the doctrine of equivalents no apphcatlOn, and be filvoked by one patentee to suppress 'the combination of'another. ' ";.'. 'j' , , ' ,
The said Hill patent is not infringed by the manufacture of stamps under letters patent granted October 28, 1883, to Willard W. Sawyer, wherein endless rubber' printing bands were used in a combination in wbichthe frame was not madefn two parts. and in which there wel,'e toothed wheels near the ., i bottom of the frame for turning the bands in a method differing from that of the Hill patent.. ' , ,
·"F'redericH. ,Betf.cl and J. E. IRndon Hyde, for complainant. Arthur v. Briesenarid Manuel A; KUTsheedt. for defendants.
. J. ''J,'his'1s an eqtiity action for infringement founded uport letters patent Nq: 18Ir,862, granted to the complainant January 2, in dating-stamps. The objectof the inventor is to provide II cheap' hand-stamp with which the year, month, and day may be printed td any given date. The 'inveUtiDl1 consists ofa stamp the of which is ma\lein two parts. Aireries of rolls are"ar.:. ranged within the case; and brillge at its lower end. Endless rqbbe;bands pass around these rolls, and also around or over the rallk in one direction, the figures dr letters upon the bands will be successively brought into position' forpriIiting, and