valid marriage; but persons may make mistakes as to the law, and, in 8 case of this sort, if defendant did make a mistake as to the legal relation existing between herself and Hiram Route, and made the claim in question honestly, then the requisite criminal intent is wanting to support the offense laid in this indictment, and yOlt should acquit on that ground. You can take the case.
MOXIE NERVE FOOD Co. v. BEACH :et al. SAME v. TUTTLE et al. SAME V. FAIRBANKS et aL SAME v. SMITH, (two caees.) SAME V. CLARK 6t ale SAME V. HARLAN et al; SAME v. DUNN et al.
(Circuit Court, Mq88achu8eti8.
, On motiQn for a preliminary injunction to restrain defendants from an 1m, itation of plaintiff's labels, bottles, and wrappers, held, that where it. appears that the imitation of the. labels, ,bottles,. and wrappers, toget1;ler with the use of the word "Nerve Food." as used by plaintiff, was such an imitation as. to deceive the public as to the identity oithe contents of the bottles, an injunction should Issue.
In Equity. On motion for a preliminary injunction. George F. Richard8CYn,M.' F. Dickin8CYn, and H. R. Bailey, for complainants. . Cha1"les Robin8CYn, Jr., Rodney.Lund, A. E. Pillsbury. J.H. Lange, and H. F. Naphen, for defendants. COLT, J. The above cases were heard together on motions ,for II preliminary injunction. rfhe complainant manufactures and sells a beverage called "Moxie Nerve Food," and it seeks to these defendants from the use of its trade-mark and from an imitation of its labels, bottles, and wrappers. The registered trade-mark of complainant is .simply the word "Moxie.'? The complainant insists, however, that it is als() entitled to a trade-mark in the words "Nerve Food." It appears from the evidence that these words had been previously applied in several cases to medicinal compounds, but never before toa beverage. All of the defendants use the term "Nerve Food" on their labels. In cases Nos. 2,394,2,395, and 2,40lthe defendants call their article the "StandardNerve Food." In the other cases the defendants term it "Imperial," or "East India," or "Excelsior," or "Noxie Nerve Food." The evidence shows that these defendants sell their preparations for the genuine Moxie Nerve Food made by the complainant. In the labels, bottles,and wrap·pel'l' there is an evident attempt on the part of the defendants to imitate those used by the complainant. Some of the labels are closer imitations than others. In two cases the defendants go 80 far as to adopt the name "Noxie" in plaeeof"Moxie." In several cases Appollinaris bottles are used in place of the Moxie champagne bottles. But it does not seem to
ACME HAY HARVESTING CO. V. MARTIN.
me important to closely analyze the different labels or bottles used by defendants, because I am satisfied that the labels, wrappers, and bottles of all the defendants bear so close an imitationto those of complainant that the public are deceived in conseqUflnCe, and that, therefore, the injunction prayed for shorild be granted. I do not place this decision on the ground of infringement of the registered trade-;,lark in the word "Moxie," though that might be said of the two cases in which the defendants use the word "Noxiej" nor do I decide that the complainant is entitled to be protected in the. exclusive to the words "Nerve Food" as applied to a beverage, but the conclusion I have reached is put upon the ground that these defendants, for the purpose of deceiving the pUblic, have imitated to such a degree the labels, bottles, and wrappers of the complainant, that they should be enjoined. The fact that the defendants Beach and Clarridge make the labels and wrappers, and sell them to others for a wrongful purpose, does not relieve them from liability. De Kuyper v. Wittrman, 23 Fed. Rep. 871. In. Nerve Food Co. v. Bawmbcwh, 32 Fed. Rep. 205, (Nov. 1, 1887,) in the circuit court for the Eastern district of Texas, Judge SABIN, in an exhaustive opinion, held 'that the complainant was entitled to It preliminary injunction. In that case the labels, etc., were those made by the defendants Beach and Clarridge, in case No. 2,394. A preliminary injunction is granted in each of the above cases.
(Oilrcuit Oourt, N. D.lllinoi,. January 9, 188B.)
PATENTB FOR INVENTIONS-NoVELTy-HAy,RAKES.
On abill to restrain the infringement of a patent for the use of poles to guide horse hay-rakes, the proof showed that poles had long been used for that purpose. Held, that the patent was invalid for want of novelty.
In Equity. Bill for injunction. Bill by plaintiff, the Acme Hay Harvesting Co., to restrain the infringement of a patent by the defendants. Peirce &; Fisher, for complainant. West &; Bond, for defendants·
. BLODGETT, J. The bill in this case charges infringement by defendant of letters patent, No. 259,550, granted to MartinH. Kenaga, June 13, 1882, for "an improvement in horse hay-rakes." and asks for an injunction, and an accounting for damages. The defendants do not deny the complainant's title, and only contend-First, that the complainant's patent is invalid for want of novelty in the device therein shown; and, 8eCond, that the defendants do not infringe. The invention covered by this pa.tent relates "to horse hay-rakes, or sweeps, of the class employed