EVANS'll. VON LAER.
appear that the election at which the ballot in question was received was an election at which a representative in congress was voted for, but we must take judicial notice that it was also a general state election for the election of numeroos state and county officers, so that it by no means follows as a necessary inference from anything stated in/the count that fraudulent ballot was cast for a candidate for a federal office. It would be consistent with all the averments of the count to assume that 1t was cast for a candidate for a state office only. The sixth count is even more defective, in that it is not averred in express terms that at the election in question a representative in congress was voted for. In my opinion, it would be violative of all rules of correct pleading to hold that the fourth and sixth counts of this indictment show that an offense has been committed against the laws of the United States. They can only be sustained by indulging in inferences favorable, to the pleader that would hardly be tolerated in a civil proceeding, even after the rendition of verdict, and this is open to violation of the rule that an indictment should charge an offense with· the highest degree of certainty. In answer to the suggestion made on the argument' of the motion that the defect in the indictment is cured by the statute of jeofails, section 1025, Rev. St. U. S., it is sufficient to say that the statute in question not remedy a defect in an indictment of such a radical nature as a failure to charge an offense; and, even if the statute should be held to have such curative properties, it would be impossible to say, from a consideration of the indictment and the charge to the jury, that the deffct in the indictment had not operated to prejudice the defendant. I may further add that section 5514, Rev. St. U. S., does not aid the indictment, as that section prescribes a rule of evidence only, whereas the i.ndictment is faulty in failing to state an offense within federal cognizance. There is no escape from the conclusion that the judgment should be arrested.
and another v·.vON
September 8, 1887.)
TRADE-MARK-"MoNTSERRAT LIME-FRUIT JurcE"-mITATION OF BOTTLES.
In a suit to restrain the 'infringement of a trade-mark, the only resemblance between the defendant's and complainants' packages was in the color of the labels, the use of the words "Montserrat Lime-Fruit Juice," and the form of the bottles. but the evidence disclosed that most lime-juice bottles were quite similar in size and design. Held no deception. Montserrat being the name of an island from which both parties import lime juice, the complainants, in the absence of fraud, are not entitled to the exclusive use of the word "Montserrat" as a designation for lime juice, although their article may have acquired a high reputation for purity and strength, while that of defendant may be of an inferior quality. Where both parties are dealers in lime juice, the defendant has no right to sell lime juice in bottles stamped with complainants' name.
SAME-USE OF BOTTLES STAMPED WITH COMPLAINANTS' NAME.
In Equity. Rowl4ndOoz and WarrenJc Brandei8, for complainants. Gray Jc..iJwift and Austin G. FIY.C, for defendant.
COLT. J. The complainants by their bill claim, as against the de-. fendant; the exclusive use oftheword a designation for lime juice. Montserrat is the name of a small island in the West Indies, and the complainants, who reside in Liverpool, are the consignees of the Montserrat Company, Limited, a corporation having large plantations on the island. The defendant lives in Boston, and is a dealer in lemon andlime-fruit juice. Formerly he did business as Von Loor & Co., or as the:Von Laer Fruit-Juice Co. It appears that on labels bearing the name Von Laer & Co.; the lime juice was designated as imported from Montserrat; . It is not shown that this lime juice was not in fact imported from Montserrat. On the contrary, the evidence is that the defendant, or Von Laer & Co.;·bo.ught limejuice.on the island, and had it shipped to this country. The fact that the Montserrat.Companymay have acquired a ,high reputatiQndor the of their artide,and.that the importation of Von Laer & Co. may have been inferiOr inquality,can make no difference, unless .the defendant, by improper means and devices, has sought to make the public believe that he was selling the article made rby the. Montserrat Company. In the absence of fraud ·the complainants cannot enjoin the defendant from the use ofa geographical name·. This was settled in the case of Oanal Cb. v: Olark, 13 WalL 311, where the court refused to enjoin the defendant against calling their coal '.'Lackawanna Coal." and where it was held that no one can apply the name of a district of country to a wellknown articleo£rGlommerce, and: obtain thereby such an exclusive right to the application as to prevent others inhabiting the district, or dealing in similar articles coming from the district, from truthfully using, the same designation. The fact that such use by another person may cause the public to make a mistake as to the origin or ownership of the product can make no difference, if it is true in its application to the goods of one as to the other. Purchasers may be mistaken, but they are not deceived by false representation; and equity will not enjoin against telling the truth. It ismlmifest, then, that to entitle the complainants to any of therelief soug?t by this bill, some fraud must be proved. The complainaJ;lts charge the defendant with in two respects: (1) Imitationoftheir as a whole; (2) the use of bottles having their names rn9ulded in them. A comparison ofthe labels will, Ithink, show that the public coulq. n<;it be misled into' mistaking the defendant's article for the complainants'. Aside from a resemblance in color, and from the Ilse of the words "Montserrat Juice," 'which the' It right totlSlil,.'thekis nothiNfon defendant's label :which resembles that of the Montserrat Company. Stress is laid upon the fact that the bottles are alike, but, bearing in mind that the evidence disc1oses, that most lime-juice bottles are quite similar in size and design, I do not,deem this very important. There is one thing. how-
NATHAN MANUF'G co.
ever, which it seems to me the defendant has no right to do. The evidence is that some bottles used by the defendant have the complainants' name blOwn into them. 'I am aware that the name is on the bottom of the bottle, and that it is not very prominent; but while ,the defendant may buy in the market these bottles, and sell them again filled with anything1mt lime juice, I do not think he should be permitted to put his own lime juice into a bottle stamped with the complainants' name, andsell it. This may be said to be calculated to lead the public to Heve they are bu;ying the complainants' lime juice, when, in point of fact, they are buying some other person's. Rose v. Lojt'U8, 38 L _ T. R. (N. Richardsv. Williamson, 30 L. T. R. (N. S.) 746. To this extent I think the complainants are entitled to a decree; and it is so ordered. Decree for complainants.
McNAB and another
NATHAN MANUF'G Co. August 15, 1887.)
(Oircuit OQurt, S. D. NClD York.
PATENTS FOR INVENTIONS-NoVELTy-SELF·FEEJ:>ING LUBRIOATORS.
The claim of letters patent No. 106.150, graJ1ted August 9, 1870, for an im· provement in self·feeding lubricators. is wanting in patentable novelty by reason of prior inventions of substantially the same form and character.
Arthur fl. Brie8en and Antonio Knauth, for plaintiff. Ed'f/1,und Wetmore, for defendant.
SHIPMAN, J. This is a bill in equity to restrain the defendant from the alleged infringement of letters patent No. 106,150, granted August 9, 1870 to William Gee, as inventor, for an improved self-feeding lubricator. The patentee's description, in his specification, of the nature and character of the invention, is as follows: "The want ·of some means of obser:ving the operation of self-feeding lubricatorshas long been recognized. With a view to provide for this want, and the proper adjustment of the feed-regulating device, the reserto voirs havebeen made of glass, or with glass sides, through which the quantity of oil contained therein mIght be seen; but the facility thus afforded for whether the lubricator was feeding properly was very imperfect, as .tbe action could only be determined by watching the gradual diminution of the level of the oil in t}:J.e reservoir, which was necessarily tedious. The object of this invention is to provide for the better obServation of the operation; and, to this end, it, consists in the provision below the reservoir and the feed-regulating device, and the contracted orifice through which the oil escapes from the reservoir, of a chamber of such capacity that the oil or other lubricating material drips tbrough the said .hamber, instead of trickling dowJ1. over the surface of the· passage leading from the reservoir and feedregulating device to the bearing or other device to be lubricated; such chamber having openings in its sides, or being partly constructed of glass, and thereby enabling the dripping of the oil within or through it to be distinctly