which parties 'VOl11d' not gladly pay two dollars and a half per acre for the right to cut it, provided it cannot be done on easier terms. But if as trespassers they Can cut and destroy on larger tracts of land and only occasionally, when detected ar,d prosecuted, criminally, secure immunity by paying two dollars at1d a half per acre for small portions of their depredations, they are not likely to trouble themselves much about consequences. On that hypothesis, on the general result, it1'1'ould be much more profitable to unlawfully take than to buy the timber, even if it could be bought. Such a construction of the act of 1878 as is contended for by defendant, would hold out a large premium to trespassers to utterly denude the public hinds of their most valuable timber. I do not think congress in the act of1878 contemplated any such absurd consequences. I do not perceive that reversing the proceedings and indicting the party-first, and beginning the civil action afterwards, would vary the rights of the parties. I am of the opinion that a payment in porsnance of section 5 of the act of 1878 does not discharge the party from liability other than that created by section 2461, Rev. 81. and thatthefactsallegeJ in the third division of the answer, constitute no defense, and that thd defense should be strickeil out as irrelevant. It is so ordered.
STOUGHTON V. WOODARD
(Circuit Court, W. D. Wisconsin.
The words "Cough Cherries," as applied to a confection, are not descripti'-e of the qualities of the article, but are sufficiently arbitrary and fanciful to be appropriated as a trade-mark.
In Equity. On bill for injunction. Action by Dwight G. Stoughton against Marshall .1; Woodard anl others to restrain defendants from using complainant's trade-mark. Coltzhausen, Sylvester & Scheiber, for complainant. Hall & Skinner, for defendants.
BUNN, J. This is an application by the complainant for a temporary injunction to restrain the defendants from using the complainant's trademark. The case stands upon the allegations of the complainant's bill. By said bill it appears that in September, 1886, the complainant, residing at Hartford, Conn., and engaged in the manufacture and sale of confections, adopted as a trade-mark, under the laws of Connecticut, the words" Cough Cherries" for a certain brand of confections made and sold by him; that he has continued such manufacture· ancisale, in connection with the use of such trade-mark, from 1886 to the present time; that he has expended large sums of money in advertising said confection, so that the goods sold under this designation have become widely
STOUGHTON V. WOODARD.
known to the trade; that nC) one had ever used the said words in connection with the manufacture and sale of confections before; that the goods so manufact\;Ired and sold by complainant under said trade-mark are of a form rol.:lghly' approximating an oblate spheroid, of a reddish color, of a cherry flavor, and medicated for alleviating coughs and colds. It is further alleged, and the fact is not controverted, that the defendants have, since the 15th day of February, 1888, at Watertown, Wis., been engaged in making and selling, without complainant's 1f'f1ve, confections similar to those of complainant, put up in a similar manner, and labeled with the same words, "Cough Cherries." The only question for the court to determine is whether the words adopted by the complainant can properly be used and appropriated as a trade-mark. And under the principles established by adjudged cases I think they may. The nile applicable to the case is perhaps laid down as well in Selchow v. Baker, 93 N. Y. 59, as in any adj udged case, as follows:
"That when a manufacturer has invented a new name, consisting either of a new word or words in common use, which he has applied for the first time to his own manufacture, or to an article manufactured for him, to distinguish it from those manufactured and sold by others, and the name tl..lS adopted is not generic or descriptive of the article, its qualities, ingredients, or characteristics, but is arbitrary or fanciful, and is not used merely to denote the grade or quality, he is entitled to be protected in the use of that name."
In that case the complainant had manufactured and sold pictures of animals in sections arranged in such a manner that when put together in a certain way a picture of an animal would be presented. These pictures they had put up in boxes and labeled "Sliced Animals." The court held that the words were not simply descriptive of the articles sold, but were more or less arbitrary and fanciful. I think the same rule applies to this case. The words "Cough Cherries" are not properly merely desold, but are to scriptive of the qualitiea of the thing manufactured a large extent arbitrary and fanciful, quite as much so as "Sliced Animals," applied to pictures of animals in parts or sections. If the label adopted had been "Cough Candy," "Cough Remedy," or "Cough Con· fection," or if the article sold had been cherries in fact, and labeled as these goods were, the case would come within the ordinary rule tbat, when the words adopted are simply descriptive of the qualities of the article sold, they will not be sustained as a trade-mark, on the principle that what is already the common property of everybody cannot be exclusively appropriated as the property of any individual. But the words "Cough Cherries," applied to a confection, are clearly distinguishable, in my judgment, from all the cases I have examined where the court has refused to sustain a trade-mark on the principle above stated. An injunction will issue as prayed.
(Circuit Court, E. D. Missouri, N. D. September 30,1889.)
A grocery company of Hannibal, Mo., ordered a broker in Chicago to ship two barrels of sugar to a customer in Hepler, Kan. This order was executed by shipping the sugar over the C., B. & Q. R. Co. A through bill of lading was taken in the name of the broker, with the customer indIcated as consignee, which reserved to the C., B. & Q. CO. the right to forward the property from Hannibal, Mo., over the line of any cOllllecting carrier. At the latter place the sugar was unloaded, placed in the warehouse of the MCJ. Pac. Ry. Co., and thence loaded on its cars, and carried to Hepler, where the to'al freight charges, at the rate of 51 cents per hundred, were paid by the consignee. Of this rate 34 cents per hundred only were retained for the Mo. Pac. Ry. Co. The Mo. Pac. Ry. and the C.. B. & Q. CO. had a standinll: arrangement by which rates were fixed from Chicago to points on the Missouri Pacific's line, by adding an arbitrary sum-five cents-to the ratc from Hannibal to such points. On the Same day, the grocery company' sold to the sallie customer one barrel of sugar, and shipped it over the Mo. Pacific's road from Hannibal to Hepler, and paid the freight charges in advance. which were at the rate of 46 cents per hundred. Held, that the two services were not rendered for one and the same party in such sense that there could be no undue discrimination, within the meaning of the interstate commerce act. '2. SAME-DISCRIMINATION IN RATES-SECTION 3. Section 3 of the interstate commerce act, which it to be unlawf 11 for a carrier to give "an undue or unreasonable preference" to any person, firm, corporation, or. locality, or to subject any person, etc., to any undue or unreasonable prejudice or disadvantage "in any respect whatsoever," does not refer solely to facilities afforded to shippers, but applies also to discrimination in rates.
CARRIERS-INTERSTATE COMMERCE ACT-CARRIAGE FOR SAME PERSON'.
SAME-ADJUSTMENT OF THROUGH RATES.
Congress did not intend to)eave carriers the power to grant undue preferences, or to subject persons or places to undue disadvantages, by any devices, or by any adjustment of joint through rates with relation to local rates. When two carriers establish a joint through rate, the proportion thereof that one carrier receives for carriage of property between two points on its line may be compared with its local rates between the same points, for the purpose of establishing that an unreasonable preference has been given, or that a shipper has been subjected to an undue disadvantage. Whether the difference between such local rate and the proportion of a joint through rate is reasonable or unreasonable, is a question of fact for the jury.
SAME-PROVINCE OF JURY.
Indictment for Violation of Interstate Commerce Act. On motion for new trial and iIi arrest of judgment. George D. Reynolds, U. S. Atty., and Clwrles Claflin Allen, for plaintiff. Tluyma8 J. Portis and Aldace F. fValker, for defendant.
THAYER, J. The defendant having been convicted on the second and third counts of the indictment, for violation of the third section of the interstate commerce act, forbidding unreasonable preferences, etc., (39 Fed. Rep. 369,) the case is again before the court, OIl a motion in arrest of judgment and for a new trial. The first point demanding consideration is one made by defendant's counsel to the effect that no preference was given in the present case, and that no person or corporation was subjected to an undue disadvantage,