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
imposition might be practiced, especially if previous potations had combined with nature to ma1te the latter oblivious to surrounding occurrences. For such conditions, however, the defendant is not responsible. In short, infrihgement in this ·cause is reached through a succession of improbable "Hs" that the doctrine, if pushed a few steps further,WP;\t14.driye,ll:U competitors from the field. The law cannot be so refined deal with, hypothesis and conjecture. The defendant is not arfimpostot. He is not representing himself or, his wares in a false light; He is openly and plainly advertising his wines to be exactly what they are. It was necessary for him to use a capsule of some kind. Almost all colors harmonious for this use, such as gold,. sjIver, and white, had previonsly been appropriated- by other dealers In champagne. He could hardly select a capsule without coming in contact with some of them. lIe,chose rose-color, as hehad a right to do. If he had simulated the' ¢omplainants' labelsiti other respects, a. different proposition would have been presented. As ilis, there is nothing of which to predicate a decree against bim.' ,No authori"ty has been cited which, in my Judgment, sustains theadval1ced position contended for by the complainants. . The bill is dismissed.
LA CoMPAGNIE GENERALE TRANBATLANTIQUE. SAME "
'(1)t8trlct Coulrt,S.D.New York. NovAmber 20,1889
ADMtBA!.'1'r-Oo*OtlilRENT AcTIONS IN RBM AND IN PERSONAM. PROOEEDINGS. '
, A suSt iIn'l'em'and a suit .in personam, arising out of, the .me cause of action, may be brought conwrrently in, the same court.
'2. SAME,..-Ai>P1,ioATION 1I0R BTAY
. When: .. ;suit in remand a suit inp6rsonam are brought uoncnrrentlv for the -me 08lleMI! action, the questiQII whether one shall be stayed until the remedy is eJ[hausted ill the other is wholly a question of practice, to be determined with referenceto the oQIlvenient admInIstration of justice. .
'I. DIlPOSITlONS'-DB :BENE Ess"":'FURTHER EXAMINATION. , . Where, ontaldng bene eRse, the cross-exa,mlnation of witnesses haa been ended In' ignorance cit. tacts material to a further cross-exaniination, the court, . upon proper aftldavits, can make such order as may be JUIt.
In Admiralty. : Exceptiotllnmd motion to dismiss second libel·
. oudert Bros., (E. K. !Jtmea,of' counsel,) forclaimailts. C Carter & for libelant.
" , iBeportAld by Edward G.' Benedict, Esq., of the NewYork1:Jar.