the pl,a,iIl.,tiff, and he, m,uat, e,stablish by cOPlIfflteJJ.t evidence, and they must not ,be left to be conjecture by the jury. Garretson v. aupl'a i1!)/tke v" ,94 U. S. 728... Itilil true that when there ,is ,no . evidence W'l\ichcan be produced of a license· fee, or the profits to frWiQ. .the manufacture of the patented device, the what would be a reasona"?le license (lyidence il$ introduced tendin.g to establIsh that I' Walk. Pat.§§ 5W3, .564. ,But the evidence in this case did not have tendency thatfact. No evidence was introoLthe relative utility or value duced fo;r;thatpurpose. of the tvvq devices .in :the patent was presented. The proof fee for tW():W1proveme;nts in fruit dryers is not compeof a tent, in, order, to show,.the damage sustained by an infringement of one of.i)hese Philp v. Nock, 11 Wall. 460 ; Seymour v. 16 IJ9w. 480. The market prife of two pieces of land could not be proven in order to show the market value of one A license fee, when established and agreed to by the of these public, is. QnIy a meanspfestimating the market value of a patented macb,ine, prdevice of whiph. the patentee had been deprived by infringemellt.,. Seymour v.¥cCormick, supra, 490, opini,on; Packet Co. v. Sickle.'lt;!9Wall.6,11;J;lijlle v. Westcott, 130 U. S. 152--165, 9 Sup. Ct. Rep. Plaintiff'!i1,eyiderice was of such a character, then, in our opinion,as not to.give tb,e jury the means of arriving at any more than nODlinal damages for plaintiff. The damages found cannot be d¢uced froIll the case, but must have been reached by surmise the was not of the character to thesame. It was therefore error in the court below. to have plaintiff in error's request to instruct the jury that theyeoUId o:Qly damageafor plaintiff. For this error the judgment of court below. is reverf3ed and set aside, and the cause remanded for further proOO(ildings·
friA,,&1, e,',Pit, pta, N,t,en,;t "m,
. , , MANUF'G CO. v. BESHOREl. (Cb"cult Oourt, E. :po J;'enusylvania. ,November 22, 1892.) No.1.
In an action to restrain the infringement of a common-law trade-mark in the words "One Cough CUre." it appeared that plaintiff began in 1888 to sell a corn re¢e(iy labeled, "One Night Corn Cure," and a certain cough remedy, labeled "Rocky Mountain Cough Syrup." The labels for the latter having b(;!enexhausted, it was thereafter sold in slllall quantities under the nallle of. Cough Cure," the labels being in writing. In the full of 1891 PrJ..nt!1d labels were. llsed, and the business was actively pushed until the conlJilenCf'ment ofthis action, in February, 1892. The respective remedies, and, the labelS for the one and the ot4er, rendered it diflicult to understB.Q.dwhat was intended to apply to the one and what to the other.ln the'application for regl$tration of the trade-mark the label recorded was as follows: . . "Corn Salve and Cough Syrup." . "One Night Cure." In the accompanying affidavit plaintiff states that the trade-mark of said colllpany WD$ists of the words, '''One Night" preceding the worus
KOH'LER MANUF'G CO. 'V. BESHORE.
"Cure" and "Remedy." Hdd, that pIairitttr hlld not acquired a trade-mark in either collocation of words, and that, even if he had, it was not infringed by the use of ll.Iabel with thefollowlng word1i!: "Beshore One Night Cough Cw'e." '
In Equity. Bill by the Kohler Manufactnring Company against E. S. Beshore for infringement of a trade-mark. Bill dismissed. Price & Stewart, for plaintiff. W. H. Bl'owne and Jerome Carty, for BUTJ.JER, District .Judge. The plaintiff claims ownership of a common-law trade-mark in the words i'One Night Cough Cure,", used as a label on medicine, which it manufactures. Granting that a. trade-mark may be acquired in this collocation of words, the plaintiff. to sustain itR claim, must show that the words have been used in the eonnec'tionstated, so uniformly and so long as to have become familiar to the public as a sign of this article of its manufacture. To show merely an adoption of the words, without such continuous use and public familiarity and understanding, would amount to nothing. The use, even, for a brief period in connection with occasional sales, wou.d amount to little if a:nything more. To establish a proprietary rightin the language it is necessary that the, public understanding respecting the purposQ of its use shall be fully proved. The evidence before us is unsatisfactory. In the first place it is uncertain respecting the collocation of words used; and in the second, it is equally uncertain as respects the public understanding. It shows that Messrs. Yeakel & Greeble, who united as partners under the firm name of the ''Kohler Medicine Co.," and entered upon the manufac· ture of medicines about 1888, procured from Dr. Kohler's estate certain recipes fo,!' corns, cough, and other remedies, and commenced manufacturing accordingly; that they at once began selling the corn remedy labeled "One Night Corn Cure," and the cough remedy labeled "Rocky Mountain Cough Syrup;" that in February, 1890, the plaintiff company was incorporated and the business and assets of the firm transferred to it; that in the month of November or December, 1889, the firm ran out of labels for the ''Rocky Mountain Cough SyruP," and resolved to sell it labeled "One Night Cough Cure;" but not intending to "push" this remedy, and to avoid the expense of printing such labels, so many as needed, (possibly four or five dozens,) were written, and used; that for a time thereafter the remedy was sold under both names; that in the fall of 1891, the plaintiff, then resolving to "push" the business, put tlle medicine up in a different form, procured labels to be printed and put them upon it; and that thenceforwal'd until the date of suit, February, 1892, the printed labels were uRed. The foregoing statement seems to be justified by the testimony, though from the ignorance of some witnesses and the unreliability of others, it is difficult to determine even this much with precision. , The corn rellledy and cough remedy, and the labels for the one and the otller,appear to be so mixed up as to render it difficult to understand what is intended to apply to the one and what to the other. No dealers in such medicines, properly considered, were
any other'reliable, 'disinterested persons of anyimporwith ,the plaititiff. . ' . ' " .. '. ., ,taut thereisanother'fact of gteat importance 'itbotit'wp,ich, no room for dispute In January, 1891, the plaintiffs applied to the tmtelJ,trpffice for,registrl,t:tiQn of its 'and W,this.application the wonds claimed'are esselltially differentfroIll;tIwse now set up, and testified to by the witnesses. The label is as follows:
MANUFACTURING ,.Corn Saive and Cough SyruP. , Registered Jan. 20, lSUL ',; 'ONE NIGHT CURE. Witnesses: Proprietor, ' . Kohler Mfg. Co., Vict61"'G.B1oede, Wm;;([}. Daugherty.' Fer Louis Yakel, SooY"
Is as follows':' '
: of, said consists of the words 'One Night' preceding the word 'Cure' or 'R,erliedy.' These have generally been arranged as 'shown in Itlle accompanyillg'fucsimile of one of their labels, which repreElents the words 'One Night 'Cure:' printed on a circular label; but the style ,ot and label are unimportant and can be varied at will without affecting the character of the trade-mark" the essential features of which are the words 'One Night Cure.' This trade-matk has been continuously' Used 'b.v said corporation,since about the middle of January, 1890. The class of merchandisH to whicli this trade-mark is appropriated is medical ,preparatJoDS; the particular description of goods comprised in such class onwhieh it is used by the said corporation is corn Iialye and cough syrup. It afllxed to the. goods bY' printed label oJ,' stencil on the boxes or other packages in which 'the' goods are put,' " Kohler Manufacturing Co., "Louis Yakel, Sect."
·,This statement is made by Louis Yakel, whose testimony taken in the case'Mfore tis. is irreconcilable with it. The plaintiff certainly knew what its rtrade'markwas, if it had one, and the foregoing statement therefore 'be regarded as conclusive. The registration ,Was noti'ce to everybo<lY that the trade-mark claimed was what is there set up, anq else., This the defendant has not infringed. His label "Besliore 01l.e Night Cough Cure" is materially different; no man couIi'lm.istake it for the other. But furthl'lrmore there is no sufficient evidence that the plaintifl.' had a,cquired a in eIther of the collocations of words stated. The occasional use of the written label prior to the fall of 1891 was unimportant. 'It was insufficient to make any public impression. 'And the 'period between the fall of 1891 and February following, when suit was commell.ced, was too short, in the most favorable view of the evidence, to have or fixed the label (whatever it was) in the publir. mind as'a known sign or indicia of the plaintiff's manu· facture of congh medicine. , Sufficient has been said to justify a dismissal of the bill, and other questions raised need not, therefore, be considered.
.. ' "j ; ·
CO. V.LAWYERS' CO-O;E'ERATIVE PUBLISHING (',().
CO. v. LAWYERS' CO· OPERATIVE
JNG.CO. (Circuit Court, N. D. New York. January 2, 1893.) No. 6,106.
CoPYRIGHT-LAW REPORTS AND DIGESTS-INFRINGEMENT-'INJUNCTION.
On motion for a preliminary injunction in a suit for infIingement of complainant's copyrights in law reports :lnd in a digest thereof, by the pUblication by d.,fendant of a similar digest, the instances of alleged piracy Ilointed out amounted to less than 1 per cent. of defendant's bo,Jk, and while, as to some of them, identity of language raised a presumption, well-nigh conclusive, of copying from complainaut's books, defendant con· tended, as to others, that both parties had copied from the opinions di· gested, and denied any piracy. It appeared that the parts of defendant's digest, l&:ued semimonthly during the year, had been sent to complainant, who was a subscriber thereto; that the volume for the year, compiled from said parts, was printed and ready for delivery; and that complainant had supplied its customers with its own digest for the year, HeW that, as the determination of the qUllstion of infringement' would involve a long and complicated comparlson, and an injunction meantime would work ir, reparable injury to defendant, out of proportion to the injury to complainant from' a refusal thereof, the temporary stay previously granted should be vacated, and defendant be restrained only from future infringement, and from selling its digeSt to an.v persons other than its regular subscritiers and those with whom·it had previously contracted to deliver the same; defendant to give bond to keep' IUMOunt of all digests sold, and to pay' such damages as might be awarded to complainant.
In Equity. Suit by the West Publkhing Company against the Lawyers' Co-Operative Publishing Company for infringement of copyrights. On motion for preliminary injunction. Granted, with leave to defendant to continue to furnish the book alleged to infringe to regular subscribers and others with whom it had contracted to de· liver it, upon bond to keep account of sales, and to pay. such damages aa might be awarded to complainant.
The bill set forth complainant's copyrights upon certain volumes of law reports and weekly advance sheets, or parts thereof, (,Jdited and published by it in the :rears 1891 and 1892, and upon the dIgest covering said reports, entitled "The American Digest, Annual, 1892," and the monthly advance sheets or parts of said digest;. also edited and publiShed by complainant in said years, and alleged that defendant, in its business of publishing and selling law books, published and sold a volume, annually, called the "General Digest," of whIch it published advance shEets and numbers semimonthly, which digest and advance numbers were publishf'd and sold in competition wIth the said copytight books and advance numbers or books of complainant, inclUding its Annual and Monthly Digests; that kn,)wing that the syllabi or headnotes of complainant were made with special reference to their adaptability and fitness for use as digest items, and that complainant had been so using and intended so to use said syllabi or headnotes, did at different tillles during the latter portion of the year 1891 and the year 1892, witllOut tlle consent of COUlplainant, reprint, publish, and sell, and did continuously since publish and expose to sale, and sell, advance numbers of their General Digest, containing statements ()f fact, syllabi, and headnotes copied from saId reports of complainant, and in particular from said advance numbers 01' books thereof, as well as fro'm said Annual and Monthly Digests. '!'he bill further alleged, on information and belief, that defendant, in preparing its General Digest for the 1892, had used and employed principally, as matter therefor, the headnotes or pointl!l issued and pUblished in its advance numbers from time to time,