JENNINGS f1. JOHNSON.·
(OirCttit Oourt, lJ. Maine. April 26, 1888.,
TRADE-MARKS-PROPRIETARY MEDICINE LABELS-lNFRINGEMh.
"Johnson's Anodyne Liniment" had been sold for more than 110 years In bottles of a certain size and style, having a blue wrapper, and a purplish label bearing a certain description and a/ac 8imile of the name of A. Johnson, the orig-inal proprietor. Defendant's article was called" Johnson's Anodyne Lini· ment," and appeared in the same size bottles, with a similar blue wrapper, and a label differing but little from that, of the genuine article, except in a not very marked difference in color, ,and bore the fac simile of defendant's name, "F. E. Johnson." Thore was evidence of actual deception. Held, that de· fendant should be'restrained from the' sale of his article in such form.
TO USE LABE:(,.
Plaintiff having been a member of the firm which prepared the liniment, and having purchased 'its business; may properly state on his labels that the ,liniment is prepared by lIuch firm.
SAME-AcTION FOR INFRINGEMENt.
Plaintiff having becomeso)e pr,oprietor of the business of preparing the liniment from the original proprietor through several mesne purchases, he has such a proprietary right as entitles him to maintain the suit for an in· jUllction.
In Equity. ,Suit by Stephen Jennings against Frank E. Johnson to restrain the of liniment in a for1D res,embling' that in which plaintiff's liniment sold. (hU8ten Browne and A. p.. BroWne, for complainant. W. H. Oliff01'fl, for defendant.
CoLT,J. The plaintiff in this case is the owner of s, remedy known "Johnson's Anodyne Liniment," and this suit is brought to enjoin the defendant from putting up and offering for sale a liniment of his own manufacture, ina form so closely resembling that of the 'plaintiff's'artiole that1he public are liable to be deceived thereby, and So portion of the plait).tiff?s business unlawfully taken away. The liniment was first prepared by Abner Johnson, about the year 1810. In 1846 he took his son, Thomas' Johnsoll,into partnership. In 1848 the business was conducted by. ThOlins Johfisonand his brother; 1. S. Johnson, the father having died that ,vear. In 1849, Thoma.s,Johnsori died, and the business was then carried on by 1. S. Johnson 'until 1866, when he sold a part'of his interestld 'the complainant. This continued until 1876, when the complainant bought out the entire interest of 1. S. Johnson, and became the sole: pro!Jrietor oithe business. ' . , Upon theeVJidllDce I think the 'complainant has shown such a pr6prietary:right: to this' business, and to the use of the bottles, labels, and wrappers with whioh: this medicine has been associated and identified, 'as entHIes' him to ma.intain this action against this defendant, and therefore
H,Pu!?licatiol\ delayed because of failure torecehre copy of opinion at the 'tiirill it was '
" ," " , ': ,::" ,
MANUF'G CO. V. J;lLAKESLEY NOVELTY CO.
the first defense of want of sufficient title in the complainant falls to the ground. Upon the question of injunction I entertain no doubt. A comparison of the bottles, wrappers, and labels make it apparent that the public would be likely to be deceived in the purchase of defendant's liniment for the genuine Johnson's. Except in the color of .the label, the articles look almost identical. The genuine Johnson's Anodyne Liniment has for more than half a century made use of a certain size and style of bottle, a wrapper of a somewhat striking blue color, and a purplish:-colored label bearing a certain, description, and having a fac simile of Dr. Johnson's name written on it. The defendant's liniment, which is also called "Johnson's Anodyne Liniment," appears in the same size bottles, with a similar blue wrapper, and with a label which differs but little from the plaintiff's, except in a not very marked change in color. The fac simile of the, name signed on the label is F. E. Johnson, in place of A. Johnson. ',l'he evidence goes to prove that the public are actually de-ceived into buying one liniment for the other, and a comparison of the form in which ,both liniments are put up shows that the object that the defendant must have had in the imitation which appears was to the public into buying his lil1iment for the genuine Clearly, he should be enjoined from such unlawful useaf that whiph another has first appropriated. The plaintiff Jennings was one of the firm of 1. S. Johnson & Co. In stating on the label that the liniment is prepared by 1. S; Johnson & Co., he merely retains the name of the firm of which he was a member.' I cannot8ee how the public are deceived or'injuriously affected by such a course. It is not uncommon, under such circumstances, to retain the old firm name. The facts in the case of Medici:M Co. v. Wood, 108 U 218, 2 Sup. Ct. Rep. 436, were quite different. In the present case I am satisfied that a aecree should he entered for the complainant, and it is so ordered. Decree for complainant. ' ,
Pun.ADELPHIA NOVELTY MANUF'G
V. BLAKESLEY NOVELTY
(Circuit Oourt, D. Oonnecticut. Febrqary 1, 1889.)
Plaintiff places its hair-crimpers in a bright red box, having a wbite label with a black border, and on the label the words, "Madame Louie Common Sense Hair Crimpers. Patented August 5, 1879, "-form a column of four lines above the representation of the head and bust of a woman with. curled hair. belowwhich'are the 'Words" Friseur Renommee. To hidetbe crimper; in doing up the hair. turn the ends under." Defendant's b.air-crimpers are in a bright red box, on which is a white label, bearing the words "The Langtry. Elegantes." in a column of two lines above the, representation of the head of a woman with curled hair, at one side of which are the words" One GroBs. " and at the other side the words "No: 1. Black."'and below which are the words "Hair CrjJ:npers." The use of the representation of the woman's head