that the letter was not intended to be conveyed by post at all, it is obvious that he would have held that no conviction could be had under the charge in the indictment before him. It is proper to say that the conclusion reached by me has not been infiuin any degree by the fact that the postal authorities, charged with the duty of ferreting out depredations upon the mail, used what are -called "decoy letters." The employment of such means for the protectior. of the mails cannot possibly work harm to honest public servants. Neither the statute nor good morals forbids the use of decoy letters for the purpose of detecting postal thieves. My decision rests upon the ground that there was evidence tending to show that the Waidner letter was not intended to be conveyed by mail, and that the district court erred in not leaving it to the jury to determine, under all the evidence, whether it was intended to be so conveyed. The question presented is, I admit, a close one; but my best judgment favors this construction of the statute as the one most likely to give effect to the will of congress. For the reasons stated the judgment of the district court is set aside, and a new trial granted. The case will be put on the docket of the circuit court for trial at its next regular term. As the accused is in the penitentiary under the judgrrlent of the district court, he can be brought before me upon writ of habeas COrpU8, and admitted to bail for his appearance at such term. After the above decision was announced, the attorney for the government asked if the court had considered whether the jUdgment of the district court could not be sustained under section 3891 of the Revised Statutes. Mr. tice HARLAN said that although that section had not been referred to in argument ,he had not overlooked it, but that it was unnecessary to decide whet6er a conviction could be had under that section for the offense charged in the present indictment. Even if it could, the punishment fixed by the judgment of the district court was in excess of what section 3891 authorized. Whether that section covered the case now before the court in any of its as_ p'lcts could be best determined at the trial in the circuit court.
PIKE MANUF'G CO. V. CLEVELAND STONE CO.
et al., (four cases.)
July 26, 1888.)
(Clrcuit Courts, D. Massachusetts and D. NtYIlJ Hampshire. 1. TRADE-MARKB-mFRINGEMENT-INJUNCTION.
Complainant and its predecessors had for many years manufactured and sold scythe stones under the trade-marks "Lamoille," "Green Mountain," "Black Diamond," "Indian Pond," "Magic," and "Willoughby Lake." Defendants, having succeeded to a company which had contracted to purchase complainant's scythe stones for a series of years; refused to carry out contract, but, having procured quarries near to some of complainant's quar, ries, were manufacturing and sellinKscythe stones under the above names, except that they used in place of "Willoughby Lake," "Willoughby Ridge," and in place of "Black Diamond," "Diamond Gem," these names neverbav· ing been used to designate stones taken from defendant's quarries. Held,
A. F. PIKE MANUF'G CO. tI. CLEVELAND STONE CO.
tbat a preliminary injunction would be granted restraining defendants' use of flU the names, whatever the decision might he were the question alone 8S to the terms "WiIloughbyRidge" and" Diamond Gem. "1
It cannot be said that the above terms, as applied to scythe stones, Indicate alone quality of the stones, but they must be held to indicate a selection and care in manufacturing. 1 That the manufacturers of scythe stones have sometimes put upon labels bearing their brand the names of jobbers to whom they have sold stones. doe& not show that any deceit has been practiced upon the public, because the purchaser obtained the same goods which be would have purchased if the name of the jobber had not been upon them. The manufacturer of goods, who has for many years used as a trade-mark the geographical terms "Lamoille" and "Willoughby Lake." will be protected in their use as against one who does not carry on business in the districts so designated.
SAME-PLACING NAME OF JonBER ON ARTICLE.
SAME-WHAT WILL BE PROTECTED-GEOGRAPHICAL TERM.
In Equity. On bill for injunction. Livermore Fish and CluuJe Streeter, for complainant. Bowdoin S. Parker, for defendants.
COLT, J. By agreement of counsel the above cases were heard together. The plaintiff asks for a preliminary injunction in each case. It appears that Alonzo F. Pike and his successor, the complainant corporation, have carried on the business of making and selling whetstones in Haverhill and Piermont, N. H., and Brownington and Westmore, Vt., since 1860, and that Alonzo F. Pike succeeded his father, Isaac Pike, who was engaged in the same business as early as 1827. The ant has for 8 number of years, varying from five to twenty-eight, used as brands upon its scythe stones the names "Lamoille," "Green Mountain,", "Black Diamond," "Indian Pond," "Mllgic," and "Willoughby Lake," and the trade in stones so branded has been extensive. The respondent, the Cleveland Stone Company, succeeded to the business of the Berea & Huron Stone Company, of Cleveland, Ohio. The latter company had entered into a contract with the complainant in 1885 to purchase its scythe stones under the above-named brands, others, at certain prices, which was to continue until January 1, 1890. The defendants refused to carry out the contract of the Berea & Huron' Stone Company, but, ha.vingacquired a quarry in Piermpnt, N. H.; adjacent to complainant, and another in Cummington, Mass., proceeded to manufacture and sell scythe stones, marking them with the brands similar to complainant's. It is not pretended by the defendants that they purchased the right to use either of these brands, and it does not appear that either of these brands had ever been used to designate stones taken from defendants' quarries at Piermont or Cummington, nor is there any suggestion in the circulars or catalogues of defendants that their names mark a new kind or brand of stone. As suggested by complainant's . counsel, no good reason is given by defendants for the appropriation of these brands, and the logical inference is that the defendant company in·
note at end of case.
tended to represent to the public that it was making the same scythe stones which were made by the complainant, and so obtain a part of complainant's trade. Under these circumstances the defendants must show a clearlegal right to the use of these names, or an injunction should be g r a n t e d . ' ' As a matter of defense it is urged that the names or labels used by de.. fendants are not the same as those employed by complainant. The de. fendants use the identical names, "Ind,ian Pond," "Lamoille," "Green Mountain," .and "Magic," to denote certain brands they manufacture and sell. In place of "Willoughby Lake" the title is used of "Willoughby Ridge," and in place of "Black Diamond," "Diamond Gem." The Black Diamond has a peculiar oGltagonal shape, and the defendants' stone is cut in substantially the same shape, and called "Diamond Gem." While, if this case stood alone, there might be some doubt about it, as a part of the scheme of these defendants to pirate the more valuable brands of the complainant, i(an injunction is issued against the use of the other names, I think this should be inclUded. . Another ground of defense is that these brands, as applied to scythe stones, are indicative alon-eof the quality or grit of the stone. . I do not think it can be said that these names only denote quality, but I am satisfied that they. also. indicate a certain selection and. care in manufacturing. The evidence goes to prove that the names "Lamoille," "Black Diamond," "Willoughby Lake," "Green Mountain," and "Magic" have always indi9atedstones manufactured by the complainant,or its predecessors or assigns, and the same is true for more than 25 years of the "Jndian Pond" brand. There is some evidence that the complainant or its predecessors have sometimes put upon their labels bearing these brands the names of jobbers to :Whoin they have sold stones. In doing this no real deceit was practiced upon the public, because the purchaser obtained the same goods which, he wO\l.ld have purchased if the name of the jobber had not been upon them. It is urged that "Lamoille" and "Willoughby Lake" are geographical terms. The defendants quarry stoneS 200 miles from Lamoille county and Willoughby lAtke, and the names "Lamoille" and "Wi!101.lghby Ridge." thatcolJlpla1nant cannot have a valid trademark in these names, which J do ,not decide, it seems to be well settled that a manutacturer will be protected in the use of a geographical name as against one who does. not carryon business in. the district so designated. BlackweU v. DWreU,14 O. G. 633, 3 Hughes, 160; Newman v. Alvord, 49 Barb. 588, 51 N. Y. 189. Upon the facts disclosed ·in these cases, which bear, it seems to me, s1;rongly against the defendants, I think the injunctions prayed for should be granted,and it is so Qrdefed.
.TIU.l;lll:.!lA.RXS-WlIA.T WORDS HA.Y lIlI: USED.
ante, 524 which was a bill to restrain the use of the trade-mark" Acid Phosphate," MORRIS, :t., in discussing the question as to what words maybe appropriated as a trademark, says: "The true test, it appears to me, must be, not whether thewol'ds are ex·
In the case of ChemicalWorks v. Muth,
WESTINGHOUSE ELECTRIC CO.
haustively descriptive of the article designated, but whether in themselves, and as the:y are used by those who understand their meaning, they are reasonably indIcative and descriptive ot thing intended. If they are thus reasonably descriptive, and not arbitrary, they cannot 'be appropriated· from general use, and become the exclusive property of anyone. This rule is clearly expla.ined and applied by FOLGFJ!h speaking for the court of appeals of New York ill the case of Caswell v. DavIs,58 N·.L 223. He says: 'Nor is the question whether the name used as a trademark will convey an exact notion of how to compound all article, so that one reading it will be able to make a like article. If the necessary effect is to inform the reader or hearer of the general characteristics and composition of the thing, it is a name which may be used with equal truth by anyone who has made and offers for sale a thing com· pounded of the same ingredients, and who desires to express to the public the same facts. Nor does the coupling together, in a new combination! of words which before that had .been used apart, and had entered into the common SCIentific vocabUlary, give a right to the. excluaive use of such combination, where it is indicative, not of origin, maker, use, and ownership alone l but also of quality and other characteristics.'" The words "Maryland Club WhIskey, "arbitrarily chosen and used as a designation by which a particular whiskey was to be known to dealers and the public, and not in them· selves indicating $ny particular kind, quality, oreom.position of whiskey previously well known td the trade, are a proper subject for a trade-mark, and the fact that such words have been applied only to a certalll grade of whiskey manufactured by them, . thereby necessarily distinguishing that from grades of goods of their own m.anufacture does not invalidate the right to their use as a trade-mark. The words "Maryland Club, "being the name of an institution and not of a place, the rule excluding the use of geographical names trade-marks is not applicable. Cahu v. Gottschalk, 2 N. Y. Supp.13. See further, 8S to what will be protected as a trade-mark, Schneider v. Williams, (N. J.) 14 Atl. Rep. 812, and cases cited in note. .
(Oirouit Court, D. MaaaaohuaettB. August 7, 1888.)
PATENTS FOR INVENTIONS -INFRINGEMENT ERGY. DISTRIBUTORS OF ELECTRIC EN'
Letters patent No 351,589, granted October 26,1886, to George Westing. house, Jr., assignee of Lucien Gaulard and John D. Gibbs, for improvements in methods and apparatus for the distribution and conversion of electric energy by an arrangement of converters in series, the specification disclaiming any other arrangement, are limited to the series system, and the use of the multiple arc system is not an infringement.
In Equity. Suit for infringement of letters patent. Ohauncey Smith, Frede:rick P. FiBh, Tlwrnn.s B. Kerr, and Hyde, Dickineon &: Howe, for complainant. Jamea E. Maynadier, Robert S. Taylor, and William A. Macleod, for defendant.
COLT, J. This suit is brought to enjoin the defendants from infringing letters patent No. 351,589, granted October 26, 1886, to George Westinghouse, Jr., assignee of Lucien Gaulard and John D. Gibbs, for improvements in methods and apparatus for the distribution and conversion of electric energy. and ably presented on both sides. The The case has been patent relates to that branch of the art of electric lighting known as the "incandescent." The specification states that the