FEDERAL REPORTER, vol. pO.
ROCHESTER COACH LACE CO. SCHAEFER.
PATENT8 1I0R INVENTtON8'-NoVllLTT.'"
Oircuit. January 18, 1892.)
Letters patent No. 177.194, issued May 9, 1876, to OllOOr Boehme, for an improvement In the manijfacture of balls and . rosettes of yarn, .consisting in the use of a funnel"8haped tube, through which the yarn ill drawn, so that it comes out of the small end in a compressed condition, ready to be bound and cut, are void for want of patentable novelty.
In Equity. Suit by the Coach Lace Company against Schaefer for infringement of letters patent No. 177,194, issued May 9, 1876, to Oscnr Boehme, and a,fterwards assigned to complainant. In the circuit court the patent was held void for want or patentable novelty, and decree enteredqismissil'lg the bill. The opinioll was delivered by Judge COXE. See 46, Fed. Rep. 190. Plaintiff appeals. Affirmed. George W. Hf?Jj, for appellant. Fred. F. Ohurch, (Church & Ohurch, of counsel,) for appellee. PER CURIAM:. We are entirely satisfied with the conclusions reached The decree is affirmed.
by the lea,rned district judge who decided, this case in the circuit court,
as expre$sed in his opinion.
BATTLE et ale 'I). FINLAY et ale
CCfr01ttt Court, E. D. Lou'£81.ana. April 8, 1892.)
L TRADIl-MARX-FEDERAL COURTS-EQUITY JUR1SDICTION. As the jurisdiction of equity in matters of trade-mark Is recosnlzed by a long line of both English and American cases, the federal courts may aawmlster equitable remedies therein when they have jurisdiction by reason of the citizenship of the parties, notwlthstandillgthat the federal statutes on the subject have been declared in the Trade-Mark Cases, 100 U. S. 822- SAME-INFRINGEMENT. It is an infringement of a trade-mark to employ an Imitstion likely to deceive and impose upon the customel'B and patrons of the proprietor, and the use of the arbitrary teI'ID. " Bromidia... previously adopted by another, 18. such an imitation, notWithstanding the fact that the infringing manufacturer's name is printed on each label
In Equity. Bill by Battle &. Co. against Finlay & Brunswig fOf injunction against the infringement of a trade-mark. Injunction allowed. Denegre & Bayne, fOf complainants. B. R. Formam, fOf.defendants. BILLINGS, District Judge. This cause is submitted upon bill, answer, depositions, and exhibits for a final decree. Upon the motion for an injunction pendente lite; an opinion was rendered by the circuit judge, PARDEE, reported in 45 Fed. Rep. 796, which states the facts the
BATTLE V. FINLAy,
law of the case, as they were presented at that preliminary hearing, with completeness. The proofs have not varied the case from its features as then presented, and I have only to refer to that opinion, and adopt it, as, in my view, the law of the case is correctly stated. The solicitor for the defendants has submitted views and authorities upon one or two points not then presented, which I will consider. It is urged that since the decision of the Trade-MlLrk Gues, 100 U. S. 82, this court can derive no jurisdiction from the United States statute concerning trademarks, and therefore that the equity jurisdiction can exist only in case of fraud upon, and intended deceit of, the public by the defendants, which the solicitt)r urges are wanting upon the proofs in this case. The first proposition is correct. But the jurisdiction of the court is derived from the citizenship of the parties, the complainants being citizens of the state of Missouri, and the defendants being citizens of Louisiana. The equity jurisdiction of these trade-mark cases is founded upon a long line of English and American cases, even when the rights of the parties are to be determined entirely by the written and unwritten laws of the 8tate8. See Trade-Mark Gases, 100 U. S. 92, where the court say: "The right to adopt and use a symbol or a device to distinguisti the goods or property made or sold by the person whose mark it is, to the exclusion of use hy all othl'r pl'rsons, has been long rl'cogllized by the common law and tltJe chancery courts of England and of this country, an,1 by the ,statutes of some , of the states. It is a property right for the violation of which damllges may be rl'covered in an action at law,. and the contin ned violatiun of it will be enThis joined by a cOllrt of equity, with compensation for past exelusive right was not created by the act of COli gress, and does not now depend upon it for its enforcement. The whole system of trade-mark property and tht' civil remedies for its protection existed long anterior to that act, and ha ve rem'ained in full force since its passage." I See, also, 2 Kent, Com. (8th Ed.) p. 453, margo p. 372; Taylor v. Carpenter, 11 Paige, 292; Partridge v. Menck, 2 Barb. Ch. 101, and cases cited in the last case. In these cases equity jurisdiction was maintained becausetbe right on the part of merchants to use certaillmarks, whereby the public are infonned that goods or products are made or selected for a species of property, and because sale by them, is recognized as the wronglul interference with or employment of such marks by others injured a business. Undoubtedly there must be imitation or simulation "in 8uch a manner as to be likely to deceive and impose upon the complainant's customers or the patrons of his trade or business." This is stated to be the test by Chancellor WALWORTH in Partridge v. Menck, 2 Barb. Cb., at page 103, and in this connection may be noticed the fact urged by defendants' solicitors, that defenda,nts' name was printed upon the label. The answer to this suggestion is that the employment of the arbitrary term" Bromidia," coinpd by the complainants, which has no meaning of itself, and is used solely to indicate in the trade the complainants' compollnd, is a simulation not overcome by the fact that the defendants printed their own name on each label. As to the effect to be given to the printing of the name of the person,who appropriates the trade-mark, along with it, the supreme court (Menendez v. Holt, 128 U.
6.521, 9 Sup. Ct; Rep. 143) say: "That is an aggravation, and not a justification, for it is openly trading in the name of another upon the reputation acquired by the device of the true proprietor." Unless a &im1,llation was intended, it is difficult to see why the name "Bromidia II sbould be adopted by defendants, which has no meaning whatever, exceptas. connected with complainants' business, and as associated with and indicative of a soothing or soporific mixture prepared and sold by them. I think the complainants are entitled to a decree perpetuating the injunction.
UNITED STATES'll. THE JAMES
n. Washinaton, N. D.
March 26, 1899.)
L PENALTIES AND FORFEITURES-KILLING FUR SEALS IN ALASKA WATERS.
unlawful, and vessels found within said boundaries engaged in that business are subject to seizure and condemnation as forfeited to the United States.
SAME-SOVEREIGNTY OVER BERING SEA. '
in the treaty of the 30th of ,March, lli67, between the United States and Russia is
T,he unauthorized killing of f,11r seals anywhere within the boundaries described
T,he president and congress are vested with all the responsibility and powers of the !\,overnment for determination of as to the maintenance and exten· sion of our nationa:l dominion; and, they having assumed jurisdiction and sovereignty over the waters of Bering sea outside of the three-mIle limit, the people and the courts are bound by such action. The treaty between the United States and the Makah tribe of Indians gave no rights or privileges to the Indians peculiar from or superior to those of the citizens of this country in general.
INDIAN TRIBES-MAKAR INDIANS-TREATY.
In Admiralty. Libel of forfeiture for violation of Rev. St. § 1956. The schooner James G. Swan (formerly the Anna Beck) was seized, and by a decree of the district court for the district of Alaska was condemned as forfeited to the United States, for being engaged in the business of killing fur seals in the waters of Alaska, in violation of section 1956, Rev. St. At the marshal's sale pursuant to said decree the claimant, Chestoqua Peterson, an Indian of the Makah tribe, purchased said vessel, and changed her name to the James G. Swan. In the spring of 1889 he sent her, with a crew of Makah Indians, under command of a white man, on a sealing voyage upon the Pacific ocean and Bering sea. On July 30, 1889, said vessel with her said master and crew, in Bering sea, in latitude 55 0 44' N., longitude 171 0 4' W., distant about 70 miles from the nearest land, and within the boundaries of the territory ceded to the United States by the emperor of Russia, as the same are d.efined in the treaty between the governments of the United States and Russia, was engaged in killing fur seals; and was for that cause then and there by the commander of a United States revenue cutter seized and brought to Port Townsend, in this district. Fur seals were actually