bill also alleges'that the ,improvement hlld'not. been, to the pause or on sale in the United ,'tentee's;or the States for more than two years prior to the application for letters patent, and had never been known or used in this to the application. This is an express averlllent that it had neve,rbeen 'in public ,use for any time before the lind, if it had neyer been known by anybody before the application, it could not have been on' sale, for the and presentation of. an invention in. the market creates a knowledge which is inconsistent with the averment. thai nobody knew made a more,simple and more of its existence. paragraph if he 4;:td followed the language 0'£ the statute, but I th.ink that his averments are adequate, and they apparently comply with *t).6 ayerments which were regarded as sufficient in ¥t;Ooy v. Nelson, 121 U. S. 484, 7 Rep. 1000. ' · The demurrer is not sustained.
(Oircuit COlm, S.D.
Y'ork. April 21,1890.)
L 'rBADB-lfARll:s";"INJUNd'l'rol'f: . 'l'he manllfacturer of. aPi uPicooked puddiPig, ,put up iPi paokages, under the trademlj.rk name of "PuddiPie," caPiPiot ePijoiPi the maker of a similarpreparatioPi from usiPig the Word "PuddiPig" in describiPig 'it.
Sl.SAME. rhe use of the word" Rose, "iPi cotlJlectioPi with the word" VaPiil1a, "as a trademark, is PiO grouPid for ePijoilliPig a rival maker of similar products, COPitaiPiiPig those well-known fiavors, from uBiPig those words iPi describing his goods. 8. BAM.. . , A,manufacturer who falsely represents the composition of his goods by the labels on his packages is in no positioPi to enjoin a rival manufacturer from usiPig similar labels aPid packages, on the groUPid that the latter thereby deceives the pubUo. ,
Motion for Preliminary Injunction. Bill by William P. Clotworthy against Leopold S('hepp to restrain certain alleged infringements of complainant's Wm. Hen1"!J Browne, for complainant. . Theron . G. Strong, for defendant. LAOOMBE, J. The complainant owns two registered trade-marks,"';';' the word "Puddine" (an arbitrary word symbol) applied to an article of prepared. food, and the word" Rose," also applied to the same in connectionwiththe word "Vanilla. " Thislast word is inaccurately stated in the be "an arbitrary and fanciful word symbol." It in fact describes a well-known flavoring extract, and, when used in. every-day speech with food products, implies that such products are fla:vored with rose. Complainants seek to enjoin defendant from putting up and selling defendant's food preparation in certain packages, which
he contends infringe his trade-mark, and deceive the pUblio; being mistakl3n, as be claims, for complainant's pa'ckages. What defendant makes and sells is, in fact, an uncooked "pudding," within the dictionary definition of that word, viz:· "Flour or meal mixed with a variety of ingredients, and usually sweetened." Of course, the complainant cannot, by coining a word which resembles "pudding, "and registering it as a trade-mark, prevent other makers of pudding from calling their goods by their well-known English name. Nor, in view of the evidence produced by the defendant, namely, that both "rose" and" vanilla" are and have been for many years well-known flavoring extracts, bought and sold under those names, and used by confectioners, can complainant prevent other persons who flavor their foodprouncts with rose or vanilla, or a mixture of both, from truthfully describing them as so flavored. ComplaiJiantfurther bases his claim to an injuriction upon an alleged simulation olhis packages, contending that the preparation of ant is put up in packages which, by the arrangement of the descriptive terms "pudding" and "rose vanilla," iIi connection with the shape, size, color, and general appearance of the packages, simulate those of the complainant, and deceive the public into purchasing the defendant's un<klr the belief' that they are 'getting the complainant's. The affidavits of two persons who claim to have been deceived by the appearance oftha packages are presented. Of course, ocular inspection of the respective packets is the most persuasive evidence on such a question. There is Bome similarity between the packages on one face, but the other parts are so dissimilar, so plainly declare that the goods are defendant's make and are claimed to be protected by his own trade-mark, that it is not easy to see how any but the most incautious purchaser could be deceived. Moreover, the complainant himself is engaged in deceiving the very publie whom he claims to protect from the deception He calls his preparation "fruit"'puddine. In nine different places on his package "fruit" is repeated"as descriptive of the article, and a dish of. fruit (pears, grapes, etc.) is most prominently depicted on one face of each packet. .His packages plainly suggest tlul.t fruit of some kind enters in some shape into his compound. A chemical analysis produced bY' defendant, the substantial accuracy of which is not disputed, discloses the fact that his "puddine" is composed exclusively ofcorn starch, a small amountofsRccharine matter, and a flavoring extract, with a little carmine added to give itcolorj it contains no fruit in any form.- Under these circumsttlnces,complairiant's rJghts the granting of a preliminary injunction. Fetridge v. WeUs, 4 Abb. Pro 144, approved in Medicine (h. v. Wood, 108 U. S. 218, 2 Ct. Rep. 436.
CO. V. CAPITOL CITY MANOF·'a CO.
(Oircuit Court, D. Connecticut.. May 1, 1890.)
Where, in suit for the infringement of a trade-mark, exhibits of the devices used by both complainant and defendant accompany the bill, the court will sustain a demurrer to the bill where the exllibits show that there is no infringement.
In Equity. On demurrer to bill. H. A. West, for plaintiff. A. II. Walker, for defendant. SHIPMAN, J. The complainants' bill for an alleged infringement of their trade-mark makes profert of the trade-mark, and of the alleged infringement, and exhibits of the boxes and the devices, and symbols thereon, which are used by each party accompany the bill. The defendant has demurred, upon the ground that the plaintiffs' bill shows that they have no case. Upon the hearing of the demurrer the complainants did not appear. An inspection of the boxes shows palpably that there is no infringement. The demurrer is sustained.
(District Oourt, D. Massachusetts. April 17, 1890.)
As the steamer P. was entering Massachusetts bay, at sunrise, the coal-barge A. was sighted three miles to the windward, apparently in distress. The P. changed its course,and took the A. in tow. The A. had been left at 1 o'clock in the morning by the B., it being the rear of a tow being taken to Boston, and the hawser having broken in the rough sea. When found the wind was high, her rudder was disabled, her sails useless, heavy seas were washing over her, and her hatches in danget of being oarried away. She was towed by theP. to a place of safety, and left· the B. having returned an,d met them. The cargo of the P. was worth $147,000, and she was delayed 11 hours. The A. and oargo were worth $20,700, and was towed with great diffioulty, from the roughness of the sea and the loss of her rudder. HeUL, that the P. should be allowed $4,000, the amount being increased by the attempted defenses that theA. was not in great peril, was not taken to a place of safety, and that the P. agreed to bring her in at towage rates, which were shown to be false by the testimony of the master, who, though swearing to the answer, said he did not know it contained snch statements.
.In Admiralty. Shattuck &:- Munroe, for libelant. E. P. (hrver, for claimant. NELSON, J. As the steam-ship Parthian, of the Boston & Philadelphia Line, was entering Massachusetts bay, at sunrise on the morning of November 3, 1889, bound for Boston, the wind being southerly, the chief officer sighted from the bridge, about three miles to windward,