17. BLAKESLlllY NOVELTY
PHILADBLPHIA NOVELTY MANUF'G
(O('I'CUU Oourt, D.
December 10, 1889.)
Complainant places its hair crImpers in a bright red box, having a white labelt with a black border, and on the label the words, "Madame Louie, Common-Sense Hair. Crimpers. Patented August 5,1879, Wforming a column of four lines above the representation of the head and bust of a with curled hair, below which are the words, "Friaeur Renommee. To hide the crimper, in doing up the hair, turn the ends under." Defendant's are placed in a bright red box, of different box is presented to the eye, on which is a shaRe from ooml?lainant'a box,' as whIte label, bearmg 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 whichare,tb,e,words, "One Gross, "and A1; the other side the words, "No. 1. Black," and l>elow are the wordsr"Hair-Crimpers." The, use of the representation .' of the woman's head by defenaant'spredecessor antedated its use by complain, . ant's predecessor. 'Hela;that there'" 110 infringement of complainant·s trade, ,mark.
For motion for prelim-
J. This is a bill in equity to prevent the alleged infringetl'\ent ora trade-mark, and now been heard upon final proofs. A motion for' preliminary iI\iunction: had been previously heard and de37 Fep'. Rep. 366. The' fi,nding of facts upon that motion was eorrect, except'tllat I was mistakeniI) saying that "the crimpers are ordinarily sold by' the box,.or are shown to the purchaser in the box." They are sold to the consumer by the small package, from an uncovered red box. What is styled in the bill "the distinctive trade-mark," i. e., printed upon the and the' picture of the head of a woiban with hair curled, or, in other w'ords, the label itself, is n<:>t infringed by the, defendant's label, for the reasons stated in my former opinion. The complltinant'l3 label, with its'words, symbols, and distinctive appearance, been simulated, and the defendant's box, with its not being adapted to deceive or mislead the purchaser, is the use or., similar colors of and of boxes to be enjoined as infringing the ,rights of the com plainan t1 The answermust be in the negunless the compll1inant's trade'-:!park properl)as been imitated to 8otn.e extent,' or, unless there isa colorable tesembhin,ce between the two m!arks. eli sO' or the complaii.!antagainst Rouss (39 :/j'ed. Rep. 273) receritly heard in the circuitcoprt for the southern district of New York upori the' same record which was u'sedin this case, and nothing naeo: be added ,to the statement of the la;w by Judge COXE in regard to the tlMhtsof'a; manufacturer' to the exclusive use of a particular color, when symbol has been simulated. The bill should be dismissed.
JlUMM t'. KIRK.
MUMM et al.
(CirC1l.it Court, S. D. New York. December 17.1889.)
The use of a capsule of the same color as that used by complainants on bottles of champagne will not be enjoined, where there is no attempt at deception thereby, and where other labels used by defendant are 10 unlike those of complainants that no mistake could arise between them. I
On bill for injunction.
Roland Oox, for complainants.
COXE, J. The complainants, in Fr;mce, and the defendant. in this state, are engaged in the production. of champagne wine. The wines of both are sold in this country. The complainants use a rose-colored capsule upon bottles containing wine D;lade by them known as ,,'E;x:tra Dry." They seek by this suit to prevent the defendant from using a capsule of similar color. It is conceded that he has the right to the words "Extra Dry." and that he may offer his wine to the public in the conventional champagne bottle with a capsule of any color except rose-color. No fraud is proved. There is no attempt to show that anyone has been misled or has ever bought the defendant's wine for the complainants' wine. Indeed, it must be admitted tbat deception is absolutely impossible, unless practiced by some one other than the defendant. When ·canll1istl,lke it for the comthe wine leaves his hanrlsno rational plainants' wine. 'I'he defendant's bottles are provided with labels emphatically unlike the complainants' labels·.which announce that the wine is made by the Pleasant Valley Wine Company, and is known as "R. B. K." But the complainants argue that, in the process of cooling, the labels are liable to drop off, and that a dishonest bar-tender might, by leaving the neck of the defendant's capsule on the bottle, ignorant or unwary purchaser to take it for the oomplainants' wine, even though the complainants have their firm name embossed in large letters upon the oapsule. That this might be done is possible,but it is not probable. ,A man of average intelligence, exercising ordinary care, Could readily ascertain the difference. If the large label werewaehed off, the small one would still remain. If that were removed also, ;the lettering on the top of the capsule, the absence of lettering on its neck, and the name on the libent.ted cork would still be left to tell the story. In addition, there would be the absence of complainants' narrow neck label and metal cap for the, cork, and also the difference in the flavor of the wine itself. If, iuspite of all this, he were imposed upon,hecer. tainly would not be undeceived by a. q.ifferent col()red capsule,. The part played by it would be infinitesimal and unnecessary; If the vendor impecile, of happened to be a ]p!avej aJ;ld- the