NEW YORK & R. CEMENT CO. 'II. COPLAY .CEMENT CO.
sued, and proper steps were taken to bri,ng the legal questions befote the court. The petitioner is the agent of Armour & Co. of Chicago, manufacturers of oleomargarine, in the state of Illinois, and he was arrested under a warrant issued by a justice of the peace, being charged with selling oleomargarine in violation of the laws of the state of Minnesota, and at the hearing was committed on failure to pay a fine imposed of $100. The conceded facts before this court are that he sold as agent, in the original package, oleomargarine, stamped and put up in accordance with the laws of the United States, and which had been imported. into the state of Minnesota from Illinois by the owner and manufacturers, who were citizens and residents of the latter state. The law of the state of Minnesota forbids the sale of oleomargarine in the state of Minnesota, whether manufactured in this or any other state, and makes no distinction between the importer who sells in the original package, as imported, and one who sells it when the package is broken up. The questions presented in this case were fuUy considered and decided by the United States supreme court in Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. Rep. 681,and that court decided, in brief, that Commerce among the several states was subject only to the regulations imposed by congress, and that the states could not interfere with or regulate such commerce; and, further, that the right to transport an article of commerce from one state to another included the right to sell in the unbroken imported packages at the place where the transit terminated. The petitioner then, under the uncontradicted facts, is guilty of no offense in selling the oleomargarine in the original. package, and his arrest and imprisonment for doing so is illegal, and in violation of the constitution of the United States. The prisoner is entitled to his discharge, and it is so ordered.
CEMENT CO. 'II. COPLAY CEMENT CO.
(Oircuit Oourt, E. D. Pennsywania. October ll, 1800.)
'l'RADE-MARKS-INJ'RINGEMENT-INJUNCTION. A suit to restrain the use of the name" Rosendale Cement" in the denomination of cement manufactured and sold by defendants, cannot be maintained, though such name is known by the pnblic to lDean cement made in Rosendale, and defendants' manufactory is in another state, unless it be shown that oomplainants have an exclusive ownership or property therein. It is not sufficient that they, in common with certain other persons, have a right to use it, and the public lDay be deceived by defendants' use of the nalDe.
In Equity. . The defenda:llts manufactured and sold cement, which they denominated and put upon the market as "Anchor Rosendale Cement," though made in Lehigh county, Pa., from stone quarried there. The complainants manufacture cement in the town of Rosendale, in the state of New York,,,,here there are extem'ive quarries of cement rock, which are worked by some 15 ·or 20 different parties. Some of these. Roshaye been worked for over half a. centqry,..but the
complainants commenced their operations about 1874. The cement made in Rosendale and its vicinity bas always been called "Rosendale Cement," and the complainants contend that the term has acquired a generic signification, applicable to the hydraulic cement manufactured at Rosendale and its vicinity, and inhering in the marketable quality of the cements manufactured by the complainants and others. The bill was filed for the purpose of enjoining the defendants from using the word" Rosendale" in describing their cement, and to obtain damages and an account of profits for such use. i a. H. Mathews and Rmoland am, for complainants. P. K. Erdman and (!has. HOWBOn, for defendants.
BRADLEY, Justice, (rifter stating thefacts as above.) The reliefsoughtis based on the charge that the denomination used is untrue, is calculated to deceive the public, and operates as an unfair and fraudulent competition against the business of theeomplainants. They do not pretend that they have any exclusive right to the US'e of the term "Rosendale," since it is equally used by the other manufacturers of cement in the town, some of whom have establishments of much longer standing than that of the complainants j but they insist that they have a right to use it, and to participate in the advantages which are attached to it as enhancing the marketable valueof their cement. The defendants contend that the name "Rosendale Cement" has Ceased to have a mere local significance or application, and has come to be a generic term, used to designate the common grade or class of cements otherwise known as American natural cements, to distinguish them from a higher grade or class of cements known as " Portland Cementj" this general class of cement being by force of accident called "Rosendale Cement" because it was first made in Rosendale. Much evidence has been taken by the parties on this controverted questionj but the view of the case which we have taken obviates the necessity of eXl1.mining this evidence.. Though it be conceded. that the name" Rosendale Cement" is understood by the public as designating the place whereit is made and comes from, and·that the defendants untruly call their cement by that name, the question still remains whether they can. be prosecuted therefor, at the suit oLa private party, who is only one of the many who manufacture cement at Rosendale, and truly denominate their cement" Rosendale Cement." Would not the allowance of such an action be carrying the doctrine of liability for unfair competition in business too far? The counsel for the complainants frankly concedes that the principle for which he contends would enable any crockery merchant 01 Dresden or elsewhere, interested in the particular trade, to sue a dealer of New York or; Philadelphia who should sell an articleas'DreBden china when it is not Dresden china. It seems to us that this 'would open Pandora's box of vexatious A drygoods merchant, selling an article of linenns Irish linen, could be sued by all the haberdashers of Ireland, and all the linen dealers of the United States. . No doubt the sale of spurious goorls, or holding them out to be different from what they are. is a great evil. and an immoral.
NEW YORK d1: R. CJ<:MENT CO. V. COPLAY CEMENT CO.
if not an illegal, act; but unless there is an invasion of some trade-mark, or trade-name, or peculiarity of style, in whjch some person has a right of property, the only persons legally entitled to judicial redress would seem to be those who are imposed upon by such pretenses. The pubHc, of course, is deeply interested in their suppression, and if the laws are deficient, the legislature might very justl,}' intervene to prevent impositions of this kind by public prosecution of the offenders; but to give a civil action to every honest dealer against every dishonest one engaged in the same trade would vex the courts and the country with an aceess ofmultitudinous litigation. The law furnishes us with an instructive analogy on this subject. No man can maintain a private action for a public nuisance, though he is injured by it, unless his injury is of a special character, difl'erebt from that which is sustained by the public generally. This is a sound rule of the common law. It is intended to prevent vexatious litigation. When an injury is a public one it should be prosecuted as a public wrong. So here the wrong, if there is one, is committed against the public. If it be said that the cement manufacturers of Rosendale are specially injured, because their trade is affected, it may be properly .answered that they are all injured alike. It is a public injury as to them, just as it would be to all the dealers in linen for a man to sell as Irish fabrics that are not such. It is a damage to the complainants and the other cemeQt manufacturers of Rosendale for the defendants to sell their cement as Rosendale cement, but, like many other cases of damage, in our judgment, it is of that kind which the law calls damnum ab8rJlU injuria. The defendants may lay· themselves opAn to prosecution by their customers, or possibly by the state; if they are guilty of falsely selling their cemp-nt as of a class or sort to which it does not belong, but that is no reason for sustaining an action against them at the suit of those who deal in such cement. In our view, if a person seeks to restrain others from using 8 particular trade-mark, trade-name, or style of goods, he must show that he has an exclusive 'ownership or property therein. To show that he has a mere right, in common with others, to use it, is insufficient. We may add to the considerations already suggested, that it is difficult to see how any just basis can be laid for an account of profits between the complainants and the. that would Dot equally apply to the 15 or 20 other manufacturers of cement at Rosendale, who, if this .suit is sustained, might, with equal justice, prosecute for the same profits. These incidental suggestions, however, are apart from the.main argument, which, of itself, seems conclusive of the case. We have not thought it necessary to review the cases that have been cited and commented on by counsel. The question is nearly a new one, and we do not find ourselves confronted by any line of authorities which ought to control our own judgment and view of the matter. We have relied upon the general principles of the law which seem to be the most applicable to the case. The bill must be dismissed.
Circuit Judge, concurs.
FEDERAL REPORTER I
ECLIPSE MANUF'G CO. 'lJ. ADKINS
(01lrcw£t OO'Un't, N. D.IZUtnatB. July 81, 1800.)
PATENTS I'OR INVENTIONS-DESIGN I'OR MANUFACTURE.
The idea of ornamenting the upper or lower portion of the pipes of a radiator to a uniform height so that it will present ornamental and plain parallelograms in contras.!t is patentable as a "new and original design for a manufacture" under Rev. St. u. S. Hil29.
SAlIIE-EvIDENOB 01' INVENTION.
The patentee is not shown not to have been the inventor of the design by the fact that his draughtsman made a drawing of the radiator pipes, showing their form and size, and an architect drew the figures for the particular ornamentation adopted in radiators manufactured and put on the market by the patentee.
Dyrenforth Dyrenfol'th, for complainant. E. S. Bottum, for defendants.
BLODGETT, J. This is a bill in eqnity, charging defendants with the infringement of design letters patent No. 17,270, granted April 19,1887, to Leon H. Prentice for a design for a radiator. The scope of the patent is desc.ribed by the patentee in his specifications as follows:
.. "The leading feature of my design consists in the upright 01' vertical pipes of the radiator, having a comparAtively plain or even surface for a portion of their length from the bottom up, and with an ornamented surface consisting, preferably, of embossed or depressed ornamentation at the top or upper part, the plain portion constituting the lower or base portion of the radiator. and the figured or ornamented portioDconstituting the top or crown of the same, the plain and figured portions offsetting each other, and presenting a contrasting appearance between the upper and lower parts of the radiator. These portions of the surface give the radiator a pleasing appearance. * * * Tne invention consists in the radiator, composed of a series of vertical pipes or loops of uniform heiltht, haVing the crown or top portion of the pipes or loops omamented or figured a uniform distance from the top downward, the portion below being comparatively plain. In this manner the ornamented and plain portions of the aggregate surface of the radiator constitute two rectangular parallelograms, one above the other. A similar effect w.ould be produced by transposing the plain and figured portions. What I claim Is the design for a radiator herein shown, consisting of a series of upright pipes or loops of uniform height, having the upper and lower portions of their aggregate surface distinguished from each other by ornamentation,. so as to preseut rectangular figures, A, B, in contrast."
The defenses set up are:
"(1) That Prentice was not the original inventor of the design covered by the patpntj (2) that defendants do not infringej (3) that the patent is void, as not being within the provisions of the statute which authorizes the granting of design patents."
It will be seen that this patent is not for any specific form of ornamentation. It does not describe what the ornamentation shall consis.t of furtherthll.n to say in the specifications that the patentee prefers "embossed or depressed. ornamentation," but what kind of ornamentation it shall be, whether a Greek pattern of lines, or a leaf, or vine, or scroll, or any other embossed or sunken figures, is not indicated. The sole