G WHITE CO.
G. G. WHITE CO.
(Circuit Cowrt, D. Massachusetts. April 27, 1892.)
Plaintiff and his predecessors have long used upon their whiskey barrels a trademark consisting of a picture of a chicken cock standing upright, within a circle surrounded by the ,words, "Old Bourbon Whiskey, Bourbon Co., Ky.," and below the picture the words, "From J. A. Miller, Paris." For over 30 years this brand hall been known to the trade as "Miller's Chicken Cock Whiskey" or "Chicken Cock Whiskey." Defendants, doing business in Boston, adopted a like picture. inclnding the circle; their brand being called "Miller's Game Cock Rye." On the label, in smaller type, are the words: "The King of all Whiskies. John Miller & Co., Sole Proprietors, Boston, Mass," Held an infringement; and it is immaterial that defendants use the device both upon barrels and bottles, while plaintiff has heretofore used it'only on barrels, and that defendants' whiskey is a "blended"whiekey, having but one stamp, while plaintiff's is a "straight" whiskey, having two stamps.
.A preliminary injunction the use of a trade-mark will be granted when from the affidavits the court IS satisfied of the infringement, nnless there are spe·cial circulllstances which take the case ont 01 the general rule.
In Equity. Bill by the G. G. White Company against John Miller al. for infringement of trade-mark. On motion for a preliminary injunction. Granted. Avery &; Hobbs, for complainant. Russell &; Putnam, for defendants. COLT, Circuit Judge. This is a motion for a preliminary injunction. As early as 1856, James A. Miller, of Paris, Bourbon county, Ky., who was then engaged in the business of manufacturing and selling 'whiskey, designed and adopted a certain trade-mark, which is the subject-matter of the present suit. The complainant, through mesne conveyances from Miller, became and is now the exclusive owner of said mark. The trademark consists of the representation or picture of a chicken cock standing upright within a circle surrounded by the words, "Old Bourbon Whiskey, Bourbon Co., Ky.," and within these encircling words, and below the representation or pictare, are the words, "From J. A. Miller, Paris." This whiskey, for more than 30 years, has always been known in the trade as "Miller's Chicken Cock Whiskey" or "Chicken Cock Whiskey," and it has been noted for its grade and uniform excel· lence; and this mark has been stamped upon every barrel or package of whiskey made or sold by Miller or his succeBsor in the business. The defendants are the firm of John Miller & Co., doing business as wholesale liquor dealers in the city of Boston. About the year 1887 the de-· confendants adopted a brand or trade-mark for their whiskey sists ·of a cock standing upright, inclosed in a circle, and which ;is· called "Miller's Game Cock Bourbon" or" Miller's Game Cock Rye." There is also printed on the label in smaller type, and underneath the picture, the words, "The Kilig of All Whiskies. J olm Miller & Co. ,Sole Propri.etors, Boston, Mass." In 1885 the defendants adopted a label for their -whiskey which varied in some particulars with the form·above described.
It appears that this earlier form was only used to a limited extent, and a coMparison of these two marks, they has now been abanCloned. appear in all essential characteristics to be almost identical. The main of a cock standing feature of the Il)ark in each case is the upright. The name of Miller on each label is the same. The designation of the. one .as "Miller's Chicken Cock Whiskl;ly" or "Chicken Cock Whiskey," and. of the othe.r as "Miller's Garne Cock Whiskey" or "Game Cock Whiskey," is the mere substitution of tlw word "Game" for "Chickenj" and this. 9ifference, together with b.ther minor differences, are not enough to protect the defendants in the use of what is distinctively the cqrnplainant's mark. A glance at the two marks shows that the defendants have taken bodily the picture or representation which forms ,the complainant'strade-mlll"k, and appropriated it to their own use. To my mind the infringement is so clear that it requires no further dil,cussionj and, if there iE! any defense to this motion, it must rest upon sotne other ground. . The comvlainant uses its trade-mark upon barrels of whiskey. The defendants use their mark upon barrels and 'upon bottles of whiskey, but more extensively upon the latter.' The complainant's whiskey is what, is kn(')wn, as "straight" whiskey,-that is, a whiskey corning directly from the distillery; flnd the barrels have two stamps upon them, -one stamp being fixed when it comes from the distillery and goes into the government bonded warehouse, and another stamp when the tux is paid and the barrel taken out. The defendants' whiskey is what is known. a.l!l a "blended "whiskey; that is, it is made under a rectifier's license, by blending together whiskey of different grades, on which the tax has been paid. When the whiskey is put into barrels the gauger affixes and it is then ready for the market. It is strongly urged by, defendants that, owing to these circumstances, no one would be-deceived into purchasing the "Game Cock Whiskey" for the "Chicken .Cock Whiskey." and that, therefore, they are justified in using their mark; But it surelJ cannot. be said that, a person having a valid tracle-U1!lrk.w.hich he uses upon one form of package, another person can adopt-,the same mark upon the same form of package, and is justified in its Use because he also puts it upon another form of package. Nor is is very material whether the barrels have one or two stamps upon them, or whether. one kind of whiskey is straight and the other blended, or the price of one isalittle greater or less than the other. It may be that, owing to thes.e differences, no expert or dealer in whiskies would be de-ceived into purchasing the. one for the other. This, however, does not constitute. a s.uf:licient defilDse. Thereal.question is whether the resemblance between the two marks is not so close that the public would be likely to be deceived. and thus enable the defendants to succeed in palmingoff their goods as those of the: complainant. Suppose, for example, the complainal1t,or those who purchase from the complainant, should decide to.pDt.Up the "Chicken Cock Whiskey" in bottles with a label representing their trade-mark j it isevidelltto me that the public would be likely to be deceived into buying· thedefimdants' whiskey for that of
. BOYD fl. CHERRY.
the com plainant. The com plainant hailll right of property in this tradel of different fprm, which mark, and it has a right to useitupon contain its whiskey; and the defendants have no right to adopt a mark so near like it as to be liable to deceive purchasers,wllatever tbe siz,e or form ofthe package may be. . The granting of a preliminary injunction depends upon the special circumstances of each case. This case has been fully tried upon affidavits.. I. qo not see what new proof could be brought forward by either side at final hearing. There islittle dispute of fact, and the question is mainly: oqe of law, namely, whether the two marks are so similar that the defendants should be enjoined from. the use of the one they have adopted. In a case of this character, if the court has no doubt on the question of infringement, an injunction should be granted at this stage of proceedings, unless there are special circumstances which take the case out of the general rule. I do not find any such specialcircumstances in this.case. The defendants contend. that it would work irretrievable injury tothem to grant this motion, but this position is not supported by the proofs. The defendants are liqu9r dealers, and they put this label upon one' kind of liquor sold by them. It is true that money has been spent by them in advertising, .but the only injury in restraining them from the use of this label will be to oblige them to put some other form of label on this particular brand of whiskey, which is not an of the. complainant's trade-mark. NordoI think the complainant has been guilty of laches, considering the distance from Boston where the complainant's distillery is established, and the fact that the evidence goes to show that Mr. White, one of the proprietors of the complainant company, had nO knowledge of the defendants'label priqr to 1889, ,and this suit was brought in 1890. . Ppoq the whole, I aIll satisfied that the. complainant is entitled to an injunction; and it is so ordered.
(Circuit Court, D.lowa, E. D. January, 1883.)
PATENTII FOB INVENTIONIl-ANTICIPATION-PRIOR USB.:...M:JLlt CANS.
The Cooley patent of September, 1879, covers "a new process of raising cream from tnilk. " and, as stated by the specifications, "consists mainly in water-sealing the milk within the vessel containing it, and also in submerging such vessel in water, and in 'apparatus hereinafter described;" the ,object beinlt not only to exclude dust and dirt, but also to prevent the absorption of deleterious gases or odors from the air, and the exposure to sudden changes, electric, therinal, and otherwise, of the atmosphere, Held, that the patent is valid, although other persons had been in the habit of occasionally snbmerging containing milk, as they never proceeded so far as' to discover the importance of the method or the valuable results achieved by the patentee. The patent is infringed by a milk can maI\ufactured under the Cherry patent, whICh describes a substantially similar apparattul, and purports to accomplish the I18meell!ls, iUllubstantially the same way;· and infringement 'cannot be avoided on
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