WHITE'S GOLDEN LUBRICATOR
(Oircuit Oourt. S. D. Ohio. May 4,1889,)
The word "Valvoline." compoun<ied and used on packages of lubricating oUs by plaintiffs. and registered, /,S a tr\l.de-mark, may be used for that purpose, and the use thereof by defendant in the same manner will be enjoined, though defendant uses his own name in connection with, the word..
In Equity. On motion for temporary injunction. Kittredge &-Wilby, for complainants. J(YI'dan &- J(YI'dan, for respondent.
SAGE, J., «(YI'aUy.) This ,is a motion for a temporary injunction to restrain defendant from the infringement of complainants' trade-mark, and "Valvoline." The complainants set forth in their bill that they have been for many years, engagEld in the manufacture of lubricating oilsj that since about the year 1873 they have used as a trade-mark for their lubricntiI1g oils the wbrd "Valvoline," a fanciful word invented by themselves, applied to their pitckages as a trade-mark, and that in the month of May, 1881, if was' registered. under' the statntes of the According to the registry certificate, ,the sists of the word "Valvoltne,"aeshown in the fac simile attached to the " Extending through the center of it is a' half-moon, or crescent, containing dots or stars; but these, iL is said, may be omitted, and some other device substituted, or they may be omitted altogether, out material change. That the defendants have been using this word as a designation or mark for their lubricating oils is not denied. Theydo not use the crescent, or, half-moon, either with or without the dots or stars; but they use the word 'IVah'oline" in connection with their own name. That is to: say, their oil is ,sold as "White's Golden Lubricator Valvoline No.'} or 2," and ,other numbers,and iesolabeled. The tf'ense is that "Valvoline" is a descriptive wordj that it is really a pound made up of the words "valve" and "oleinej" that its literal. nification is "valve oilj" and that the law'of trade-marks does not permit :a descriptive word, or rather a word descriptive of the article,t</>, be propriated as a trade-mark,-which is undouhtedlythe law, so settled that it requires no verification.' It,would be out of all reason to say that 'a man should not be at liberty to sella gun as a gun because some other person had choMn to appropriate that name as a trade-mark for the guns he wanted to sell. And hence no person has any right to appropriate as a trade-mark a'word of the language which is descriptive of the article ito which the'trade-mark is applied. But that is quite different from the 'proposition 'presented in this case. Here there,.wBs no such word as article sold was known in the language and to the trade as lubricating oil. That was the appellation descriptive of that kind or grade.Qf oil, and it could not be appropriated as a trade-mark. But these complainants compounded the word "Valvoline," and at the
11. THE RESOLUTE.
illImetime made it their trade-mark. Now, if they had originated that word, ltt).d applied it descriptively to their lubricating oils, without appropriatingjt as a trl}.de-mark, they would have abandoned it to the public, and made it public property; and that, once done, would put to their right to it as a trade-mark. The defendant cites In re Leonard & Ellis' Trade-Mark, L. R. 26 Ch. Div. 288, (decided in 1884,) but the decision was upon grounds not applicable here. It appeared from the evidence that, although the word had been registered as a trade-mark in the United States, prior to its use in England, the complainants had in England, before applying for registration, used it as descriptive of their lubricating oils, which anyone had the right to manufacture, and not as a trade-mtlrk. And the court held that· by this descriptive use prior to the time when they had the word the complainants lost their right to the exclusive use. The court also questioned whether a word used alone as a trade-mark in a foreign cOQntry before the passing of the trade-marks act of 1875 could be registered. under that act if it had not been so used in England. SELBORNE, L. C., said that he was not disposed to doubt that if the word had been used in the United Kingdom as a trade-mark before the passing of the act, it might have been registered under the act; but he confirmed the finding of the court below that it had been used descriptively, and not as a trade-mark; and that it had been thereby dedicated to the public . of the United Kingdom. The defendant in this case has substituted its own name for that of the complainants, ill connection with the. word "Valvoline," so that there is no pretense that the defendant is selling lubricating oils as the oils of the complainant, because it is clearly stated intheir labels to be "White's Valvoline Oil;" but that does not relieve the defendant. The authorities upon this point are numerous, but it is not necessary to refer to any other than the case of Mlmlmdez v. Holt, 128 U. S. 514, 9 Sup. Ct. Rep. 143, Which is the latest decision of the United States supreme court upon this subject. The motion for a temporary injunction, tQcontinue until the final hearing and decree, will be granted upon the complainants a bond with sureties in the sum of $2,000.
,Di8trict Court, lY. D. Penn81ll'Dania. April 12. 1889.)
'l'he. "team tow-boat R. in charge a tow of five coal-barges. In the evening: shortly aft"r dark. broke loose from her mooring at the Monongabela'wharf in the port of Pittsburgh, and drifted down stream. The river was high, and full of running ice. The R. was in danger of striking craft moored to the shore, and of suffering injury by such collisions. She sounded hqr distress whistle, and her mate. the officer then in command, who was him·self 'a:licensed pilot, called for a pilot. The libelant, a pilot, in answer to the
call, at some personal risk. jumped upon one of the floating .barges. and, reaching t.he pilot-house of the R.. took charge of the wheel, and in the course .of an hour brought the boat and three of her barges safely to shore. Held, that the assistanctl rendered by the libel,ant was a salvage service.
SAME-AMOUNT OF AWARD.
The R. was of the value of $12,0()(); but she was in no danger of total loss, nor in llny extreme peril Hela, tMrejor" that the sum of $200 was a faiualvlOge compensation.
In Admiralty. S. M. Raymond, for libelaDt. Knox & Reed, for claimants. ACHESON, J. This is a suit for the recovery ofsalvage claimed by the libelant for services rendered by him to the steam tow-boat Resolute, under the following circumstances: On the evening of January 2, 1888, the Resolute was moored in the Monongahela river, at the public wharf in the port of Pittsburgh, having lashed to her a tow consisting of five coal-barges,-four loaded, and one empty. The river was high,-the stage of water being about 12 feet,-and was full of running ice from a gorge which had broken above. The boat lay with her head up-stream. She had steam up, and was working her wheel against the force of the current. In this condition of affairs, after dark, about 7 o'clock P. M., the Resolute broke loose from her moorings, and drifted against the steam-boat Onward, which was lying immediately below, and set her adrift. At this juncture the master of the Resolute, Capt. Warren Elsey, who had been in the pilot-house at the wheel, went out to catch a line to check up the Resolute, and in attempting to do so fell into the river. John Higbee, the mate of the Resolute, then went into the pilot-house, and took charge of the wheel. The Resolute drifted down the river stern foremost,her wheel, however,workingup strongly. The steam-boat Beaver was moored to shore about 1,000 feet below the place where the Resolute had lain. Just before she reached the Beaver, the Resolute blew her distress whistle. One of the barges in her tow strack the Beaver. The captain ,of the Beaver, Joseph McDonald, hallooed to those aboard the Resolute to stop her; that they were working into the Beaver. To this the mate of the Resolute (Higbee) replied that they had no pilot, and he asked for one. Upon the request of Capt. McDonald, the libelant, who was an assistant pilot on the Beaver, immediately went to the relief of the Resolute. At the time Capt. McDonald spoke to him the libelant was on the hurricane roof of the Beaver. Taking hold with his hands of the upper railing he let himself down so that his feet touched the railing of the boiler deck, and from there he jumped to one of the barges of the Resolute, part of her tow, then drifting past the Beaver. It was dark, Q,nd the floating barge was distant four or five feet from the Beaver. .The libelant at once went into the pilot-house of the Resolute. Higbee yielded the wheel to him, and he took charge of the entire movements of the boat. In the course of an hour or more the libelant had succeeded in getting the Resolute with three of her barges (the other two had broken away) .safely moored to shore under the point at the junc-
Jrl'DONALD 11. THE RESOLUTE.
tion of the Monongahela and Allegheny rivel'fl. The libelant remained in exclusive charge of the wheel until about 9 o'clock the next morning, when he delivered the boat to Capt. Elsey. The Resolute, when the libelant took charge of her wheel, was in danger of striking craft moored to the shore, and of SUffering injury by such collisions, and was also iIi danger of sticking at the head of Glass-House ripple. When the libelant went to the succor of the Resolute he believed-and had good reason to believe, from what Higbee, the mate, had said-that the boat was altogether without a pilot. But it now appears from the proofs that Higbee had been a licensed pilot for several yearSj but at the time of proper position on the boat was that of mate. this Such being the factS of the case, as I deduce them from the evidence, I cannot doubt that the assistance which the libelant thus rendered the Resolute was a salvage service. The danger to the boat was real and impending. She had given 8 signal of distress. Her mate-the officer then in command of the boat-called for the aid of a pilot, stating, according to the clear weight of evidence, that the boat was without a pilot. The libelant's service was voluntary. It was rendered promptly, and at some per!,onal risk incurred in his jumping upon the drifting tow, and it was successful. True, it now turns out (contrary to what the libelant supposed when he was called, and went to her relief) that the Resolute had on board a person qualified to act as a pilot. But Higbee's proper duty was that of mate. He seems, too, to have distrusted his ability to cope with the difficulties in which he found himself. Under the circumstances, then, the owners of the Resolute, I think, should not be heard to say that the ·libelant rendered no salvage service, because there was on board the boat one who was a licensed pilot, and who, perhaps, might alone have proved equal to the emergency. But here, as in every case of the kind, the perplexing question is, what amount of compensation should be allowed the salvor? There is no evidence to fix the value of the three barges, nor to show the degree of danger; if any, to which they were exposed. The Resolute was of the value of $12,000; but it does not appear that she was in danger of total loss, nor is it evident that she was-in any extreme peril. The ordinary wages as pilot for a. trip occupying 10 days were $25. Having regard,then, to all the circumstances, I conclude that $250 would be a fair salvage compensation. Let a decree be drawn in favor of the libelant for that llIDount,with costs.
FEDERAL . REFORTER,
L'lIOMMEDIEU'li. THE H. L.
TOWAGE. , ' " " '
(Diatrict. Oourt, D. Qew Jersey. May 81, 1889.)
An offer to pay the amourit agreed to he due fOr towage. less certain disputed claims for damages to'raspondents' barges other 'tban the one for which the towage is claimed; coupled, with a demand for a receipt in full, is not a sufficient tender to destroy the lien on said barge for the towage. '
, . ' " ·
SAME-ApPLICATION OF PAYMENTS.
A payment on the general towage account without direction by the debtor as to itsapplicationrnay be applied by the creditor to such "parts of his account as he desires. before is settJed, olall is brought, and if he has applied none,of it tothe towage against the bargein question, the barge-owner cannot complain.' '
In Admiralty. Libel for towage· .Anson. B. Stewart, for libelant;, Bedle, Muirheid & McGee, . fbr respondents.
WALES, J. This is a libel in rem. to enforce the payment of a lien for towing the barge H. L. Dayton during the month of August, 1887.. It is admitted that the towage services were rendered. and, that the charges for the same are correct, but the, respondents, in their answer, set up a tender of payment before the libel was filed. The of the libelant's account for towage, during August, was $519.50, including the five items of charge against the:Dayton,which last amounted to $92.50. This monthly account is credited, on November 24, 1887, with a payment of $250, and the respondents allege that at different times afterwards they offered to pay the balance of the account, less certain claims for damages dORe to two other of their barges by the libelant's tugs. There is no doubt that such an offer was made, perhaps more than once, and that it was always refused because it was coupled with a demand for a receipt in full; but there is no proof of any specific tender of payment of the Bum due for towing the Dayton. The fact that no separate bill for towing the Dayton was ever presented to the respondents does not affect the lien against that barge one way or the other, nor will the proposition to pay the August account bya smaller sum than the balance called for support the tender·· To make a tender effective, as a defense to the suit, it should have been for the full amount of the balance. The correctness of the account was not disputed, but the respondents attempted to compel or make a settlement on their own terms. This is not permissible. The contention that a proportionate part of the credit of $250 should be applied to the reduction of the charges against the Dayton is opposed to the rule that the debtor must make the application at the time of the payment; and, if he omits to do so, the creditor can make the appropriation in any way he may think proper, and at any time before an account is settled, or before action is brought. Pickering v. Day, 3 Houst. 1)37. The respondents waived their right by silence. The libelant says that he directed his book-keeper not to credit any portion of the $250 to