LICHTENSTEIX 'V. GOLDSMITH.
(Oircuit (Jourt, D.
TRAPE·MARKS-WHAT WILL BlilPROTECTED.
A label consisting- of the head of an elk, with the word "Elk" printed in b .. letters upon t):J.e face of the label, together with the words printed on it, Patented by the Elk CilZar Factory, June 15, 1875, " sufficiently indicates origin and ownershjp, to be a valid trade-mark, when applied to a box, of cigars. Which is also stamped with the district in which tiie cigars are manufactured. 1
The fact. that the owner of the trade-mark also allows the boxes to be lab· eledwith the names of the dealers to whom the cigars are sold, does not amount to a deception or false representation, so as to invalidate the trade.; mark. ' 8. SAME. " , , The fact that such labels are put on different brands of cigars is alsolmmaterisl. it appearing, that these brands are designated by soinethiirg'whichdia· tinguishes one from another, so that no deception is practiced. f "
In Equity. Bill for infringement oftrade-mark. GeCYl'ge L. Huntress, for complainants. Edward,H. Pierce" for defendant·.
CoLT, J. The complainants are the owners of a consisting of the head of an elk, with the word "Elk" printed in large th,e face of the label, and this mark has been by them fbi' Ii number of years upon boxes of cigars. The defendant, brands certain boxes of cigars made by him with substantially the same device. In view of the close identity of the two devices, the defendant cannot deny infringement, but he places, his defense on other grounds. I will, consider those which are most important. . It is said that the trade-mark is invalid because it doelJ not desigtlate or ownership. This is manifestly unsound. ,The original design contained· the letters "A. L. & Bro. ," stauding for A. Lichtenstein & Brother, and, as now used, it has the words printed on it, "Patented.by; the Elk CiPiar Factory, June 15, 1875." There is also stamped upon' the box the district in New York in w,hich the factory is loca.ted.Since 1875 these cigars of the Elk brands have been made br A. Lichtenstein & Bro., or their successors, A. Lichtenstein, Son &00. i and their factory has been known as the "Elk Cigar Factory." It seems to me that the trade-mark sufficiently indicates origin and ownership. Again,itis.sat9. ,thl1t thecom'plainantsdeceive thepl!tblic, in that they allow thebo.xes to be labeled ,witbthenames of deaJers,tow.hotn the' cigars are sold, !Or for whom they ai'emade. But this isshowntc> bEl'" ClliH tom in trade, and I do notthillk it results,in any'deception.or f.use .repraElentl.ltion;. All these: ·cip;ars 'are· in fact made at' the Elk Factory, and they are so stamped, and when the public buy them, they are
lConcerning whatwUl be· protected as a trade-mark,se8 ManufactUring Co. v. stone Co.,85 Fed. Rep. 896, and note; Brown Chemical Co. v. Stearns, post, 860, and cases oited;,
purchasing a genuine Elk cigar, made by these complainants; and I do not see that the additional label put on the box in accordance with a. custom of the trade is in any just sense such a false representation as should invalidate the trade-mark. It is further urged as a defense that the complainants make different brands of cigars, all of which are cnl4ld" Elk." But if, as appears, these brands are designated by something which disting:uishes one from the other, then no 'deception is practiced. I see no reason why this trademark should not be used in good faith on different brands or grades of Cigars all of which are made by the complainants. , The defendant also claims that the complainants gave him permission to use this trade-mark on the goods sold by him, but the evidence does not, in my opinion, sustain his position. This seems to me a case where the defendant has wrongfully appropriated a trade-mark belonging to others, and ill none of the dt:fenses brought forward, can I find any justification for his 'action. Let an injunction issue aspra.yed for. Injunction granted
BROWN CHEMICAL Co. 17. FRlllDERICK STEARNS
(Oiircuit Oowrt, E. D.ltlickigan. January 7,1889.) The words "Iron Bitters, "being indicative of the composition of the article so called. cannot be claimed as a trade-mark. 1 S.SA}4E.....:.DISHONEST COMPETITION IN ,TRADE. , , If onepersoJl can, by superior energy, by more extensive, advertising. by selling a better or more attractive article, or by greater frankness in disclosing the lngor.edients of his compound, outbid another in popular favor; he has a right to do so, provided he does n()t attempt to palm his goods off as those of another. This right is not impaired by an open avowal of his intention to compete with 'the other, or even to drive him out of the market. But he has no right, however honest his personal intentions, to use so much of his rival's name or trade-mark as will enable any dishonest trader, into whose hands his own goods may come, to sell them as tpe goods of his rival. It SAME. ' , Hence where plaintiff was the proprietor of a pre,paration known as "Brown's Iron Bitters, "and defendant of another, called Iron Tonic Bitters" . which it falsely stated to be made by "Brown & Co., ,New York," it was held that such statement should be enjoined. (Sllllabu8 by th8 Oourt.)
In Equity. ' This was a bill to restrain the illegal use of plaintiff's trade-mark. The bill alleged that the plaintiff many years ago adopted as a designation for a medicinal preparation the words" Brown's Iron Bitters," which designation it has since continuously used. That the preparation is now and has been known to consumers, and identified by the name "Iron
lIn general as to what words will be protected as a trade-mark, see Manufacturing Co. v. Stone Co., 85 Fed. Rep. 896, and note; Indurated Fibre Co. v. Fibre Ware Co., P98t, ,-, and note.