INDURATED FIBRJfco. 'II. AMOaKEAG INDURATED FIBRE WARE
INDURATED FIBRE CO. 'II. AMOSKEAG INDURATED FIBRE WARE
(Oircuit Oourt, D. NIJU'JHampBMre. January 21, 1889.)
The words, "indurated fibre, "as applied to wares made of wood'pulp, which has been condensed and subjected to baths in linseed oil and resin and baked. designate wood fibre which has been subjected to a hardening process, and refer to ingredients, quality, and characteristics, and areuot so arbitrary and fanciful as to authorize a preliminary in;unction in an action to restrain their use as an infringement ofa trade-mark. '.
In, Equity. On motion for preliminary injunction. Wilbur ,F:. Lunt, for complajnant. Livermore &: Fish,. for defendant.
CoLT, J. This is a motion'for a preliminary injunction. The princip!l.1 issue raise!l.i" whether the words "indurated fibre" are the proper aubject of a trade-mark. The plaintiff corporation is called the "Indurated Fibre Company," and is located in Portland, Me., and the defendantcorporation , is. called the" 4mQskeag Indurated Fibre Ware Company, and is located in Manchester, N.H" Upon the papers before me, itmay be said, !think. ,that theplaiutiffis the owner :of the words in question, provided they are the subject of a valid trade-mark, and also that the defendant stamps its wares with the same words, and further, that the wares made by the two companies are generally similar in composition and appearance. To grant a motion of this character I must be clearly satisfied of the plaintiff's legal rights. If I have serious doubt upon the question of the right of the plaintiff to a trade-mark in the words claimed, this motion should be denied, anel the issues now raised should be left for determination upon final hearing. Upon consideration of the affidavits and the authorities referred.toby counsel, I have a grave doubt whether these words can constitute a valid trade-mark. It seems to me that they do not sufficiently point either by themselves or by association, to the origin, manufacture or ownershfp of the article produced, but that they rather indicate the qualitr, class, grade, or style of such article; or, to express the distinction in another form, that they are not arbitrary or fanciful words, but are descriptive rather of the quality. ingredients, or characteristics of the In<;lurated fibre ware is made of wood'p.ulp.Fromthe description given in the affidavits it appears that this process consists, in a general way, of first forcing the water out of the Plllp and condllnsing it, then putting the article in a hot bath of linseed
1 A name alone is not a trade-mark when it is understood to signify, not the particular manufacture of a certain proprietorl...but the kind or description of thingwbich is ,1XI3nufacLured.lIostetter v. }1'nes, 17 ·.l"ed. Rep. 620; Battery Co. v. Electric CO' I 23 'Ii'ed. Rep; 276. Anything descriptive of the properties, l!tyle, or quality of an merely, is open to aU. Sewing-Machine Co. v. The Gibbens ,Frame, 17 F!ld. Rep. 623. The wordf "compressed yeast" indicate the chara<,'1ier and, composition of an article, ,and,are not the' .u.bject of a trade.mln'k. ',Fl.eischmann v. Newman, 2 N.Y; Supp. 608. .In gellenl, as to .whall wor,ds'wil! be protected as a trade-mark, see Manufacturing Co. v. Stone Co., 35 Fed. Rep. 896, and note; People v. Fisher,3 N. Y.Supp.786,
oil and resin, and baking it at a high degree of temperature, which bath and baking are repeated several times; and finally dipping the article,in linseed oil boiled down to a varnish, and again baking it. Now, it cannot be denied, Lthink, that "fibre," in the sense in which it is used by complainant, means "wood fibre," and that "indurated" designates the hardening process to which the article is subjected. It may be that the process accomplishes other results besides hardening the pulp, but that this is one, and perhaps the main, result, I think is quite evident. These words, then, "indurated fibre," denote, in a measure at least, the quality, ingreclients, and characteristics of the article produced, and in view of this I do not think it can be fairly said that they are arbitrary or fanciful words, as understood in the law of trade-marks. The authorities cited by the plaintiff do not, to my mind, support his position. Manufacturing Co. v. Manufacturing Co., 32 Fed. Rep. 98, was a case turning on the arbitrary name "Celluloid." So in Selchow v. Baker, 93 N. Y. 59, the fanciful names, "Sliced Animals," "Sliced Birds," "Sliced Objects," in connection with certain games or puzzles, were held capable of being appropriated as trade-marks; and the same is true of the other cases relied on .by plaintiff. The cases cited are good law, but they do not apply to this cuse, because it seems to me that the words now sought to be appropriated as a trade-mark are indicative of quality rather than of origin or ownership. Forthese reasons I must deny the present motion.
THE AUGUSTINE KOBBE. 'REVERE COPPER CO.
THE AUGUSTINE KOBBE.
(DiBtrict Gourt. 8. D. Alabama. December 22,1888.)
MARITIME LIENS-SEAMEN-WAGES AFTER SEIZURE OF VESSEL.
Sailors who ship at New York for a voyage via Mobile to South Amencll and return, are entitled, upon the seizure of the vessel under process at Mobile, only to wages then due, it appearing that they can obtain other similar employment at equal or better wages, and there being no proof of any special damage or of return expenses to their homes, A mate who remains on the vessel after her seizure, and assists the marshal in handling her, acquires thereby no maritime claim to be enforced against. the proceeds of the vessel.
SAME-MATE-AsSISTANCE TO MARSHAL.
Stevedore services do not constitute a maritime claim 80 as to impose a. . maritime lien on the vessel; and a state statutory lien for such services is inferior to liens conferred by maritime law.
The services of a boss stevedore in unloading the cargo constitute a statutory lien ranking after maritime liens.
SAME-SUPPLIES-AFTER DISCHARGE OF CREW.
One who supplies meat to the vessel at Mobile, and who has been allowed therefor up to and after the seizure, cannot be allowed for supplies furnished after the discharge of the crew.