patent has never been adjudicated, and the proof of public acquiescence Second. There is a controversy upon the question of infringement. Third. The structures complained of have peen made by the defendants since 1886, without opposition from the owners of the patent. Fourth. The complainants have owned the patent for about three months only. It is hardly possible, therefore, that they have built up an extensive business under it. Fifth. The defendants have been for years in the business, and will be seriously injured by an iI\iunction. Sixth. There is no proof that the defendants are pecuniarily irresponsible. Seventh. The instrumentof wpich an estoppel is predicated was executed by one of the defendants only, and it is, at least, doubtful whether the other defendants, who did not,sign it, can be bound by its provisions. The motion is denied.
(C(reuU Oowrt, E. D. Penmywanf.a. October 29,1889.)
Uo OF WORn "COLuMBIA." Plaintiff claimed as a tradj3-mark for flour barrels the word "Columbia," which had been for years in common use fol' many purposes as a trade-mark. Held that, as the defendant's testimony, ,though not very full, seemed to show such a use for flour barl'el$, and as the plaintiff had not rebutted it, his claim to the word could not be sustained.
Where trade-marks on a certain merchandise contained in the same form of package are very numerous and similar, the rule is that some care must be exercised to distinguish onEl trade-mark from another; and if! this oare being exercised, the difference Is easily distinguishable, the second traae-mark does not infringe. (Syllabu8 bil thB Court.) ,
Bill for Injunction and Account for Infringement ofTrade-Mark. P. H. Gu.nckel and Strawbridge &: Taylor, for plaintiff. James A. Alcorn and Johm, G. Johnson, for defendant. Before MoKENNAN and BUTLER, JJ.
BUTLER,J. The plaintiff claims an ,exclusive right to the word lumbia" in brands for flour barrels; andl charges the defendant with latingthis right, and also with imitating his brands in which the word is used. We do not think he is sustained by the proofs. The exclusive right claimed is not satisfactorily shown. The word "Oplumbia" is popular, andin common use for many purposes. That it should have been adopted long ago in branding flour barrels is quite probable; and the testimony seems to show that it was, both in the eastern and western sections of this country. If it be said the defendant's testimopy in this respect, is not as full as it might be, the same may be said of the plaintiff's. The defenda.nt went far enough to the plaintiff to further proof. No more neilJ be said respecting this branch of the case.
Flour brands are so numerous (nearly every miller and dealer his own) and the general shape and style so similar, in consequence of their use on similar packages (barrels) that purchasers must necessarily observe them with some care to distinguish one from another. A passing glance cannot be relied upon; and we must suppose is not. In this respect the case differs from those in which trade-marks are ordinarily involved. Looking at the plaintiff's, and that of the defendant's which is said to resemble it, with the attention necessary to discriminate between the thousands of flour brands in common use, the difference must be seen immediately, even by the most inattentive buyer. The two or three witnesses who say they were misled must have been especially unobservant. The bill muat be dismissed with costs.
MoKENNAN, J., concurs.
THE MADRID.1 MENGE
et cU. v.
THE MADRID. SAME.
(C1n'cuit Court, E. D. Louisiana. December 2S,1889.)
"Stalre dectsis" means that when a point has been once settled br judicial decision it forms a precedent for the guidance of courts in similar cases; but precedents may be departed from when necessary to vindicate plain and obvious of law, or to remedy a continued injustice.
The decisions of the circuit courts, not being uniform as to the relative priority of statutory and strict maritime liens, have not become a rule of property, within the doctrine of stare decisis. Contracts for supplies to a vessel at her home port are maritime in their and liens therefor created by state statutes are within the admiralty jUrisdiotion, and enforceable by proceedings in rem only in the federal courts.
:Il.1A.:RITIME LIENS-STATE STATUTE-ADMIRALTY JURISDICTION.
SAME-BASIS OF LIEN.
In admiralty the rule is that the greater advancement of the safety and preservation of the vessel forIDs the basis of priority of lien, thus often reversing the common-law principle of priority according to time. A IDortgage to secure the purchase money of a vessel is not a maritim!l debt, and does not import a maritime lien. a Rev. St. § 4192, is simply a registry statute, and does not give a maritime lien to
SAME-MORTGAGE FOR PURCHASE MONEY.
SA.1IIE-EFFECT OF RECORDING.
Supplies to a vessel by a matelial-man in her home port, under a state statute, have the same rank and lien as supplies furnished in a foreign port. The GUiding StaIr,18 Fed. Rep. 263, followed. .
Reported by Peter J. Hamilton, Esq., of the Mobile bar.