WAUKESHA H/M. SPRINGS
S. D. WATER CO.
the article to which it is affixed; or, in other words, to give notice who was the producer." The word "Hygeia" has no original sig· nif\cationwhichWQUld PQint out the water of complainant, or any other water or article; but it has, by association at least since the making of the contract, became identified with that water in the markets; so that the. word used alone is an emblem of the -complainant's productio:r,t, ahd so usedwould not be associated with the defendant's water, ttl the general market, where it had become well.known by the combination name, in which the name of its :spiin,g,. a,nd its local designlltion are preserved. The distinction IPraiie,i:J:I::p'llJ;'Suance of the contract is well marked, and is well main· taipedit;l practice which followed up.derit. It is tb,e duty of thd 'court to protect both the public and the parties from imposi· tion and confusion which would arise from indiscriminate use of thesetra<Je·names; and,to the end that each should be distinctive ·of the origin and ownership by associati<m, the defendant was prop· erlY enjoined from infringement, and the decree is affirmed.
WAUKESHA HYGEIA MINERAL SPRINGS CO. v. HYGEIA SPARKLING DISTILLED WATER.CO. (Circuit Court of Appeals, Seventh Circuit. No. 144. Defendant had the' right to use the words "Waukesha Hygeia Mineral Springs" as a trade.mark, and complainant had the exclusive right to the use: of the wl;lrd "Hygeia" as a trade-mark. except in the form used by defendant. Held; that the fact that defendant made the word "Hy· geia" more conspicuous than the rest of his trade-mark did not consti· tute an infringement of complainant's rights.
WHAT CONSTITUTES INFRINGEMENT.
October 1, 1894.)
Appeal from theOircuit Court of the United States for the North· ern District of Illinois. . Suit for injuncHon by the Hygeia Sparkling Distilled Water Com· pany against the Waukesha Hygeia Mineral Springs Company. Complainant obtained a, deCree. Defendant appeals.
This bill in equity is filed by way of supplement to an original bill between the same parties, on which there was a decree in favor of the complainant, reo 'straining the'd'efendant (appellant here) from using the word "Hygeia" as a trade-name otherwise than in the combination "Waukesha Hygeia Mineral Spring," with or withuut the word "Water" superadl1ed; or, in effect, ac· ·cording to the definitions of the respective trade-marks conu,lned in a certain contract,. beai'ing date August 20, 1886. The present bilI seeks further injunctional relief by preventing the defendant from using the word "Hygeia" 'in the combination allowed by the former decree "in m(}re conspicuous let· tel's than the other words in said combination," by using the same in "larger or different colored letters than the other words in said combination. 01' in any other manner." A copy of the bill, record and proofs in the original case is annexed as an and made a part of this bill; and certain signs, advertisements·. labels, etc.,· referred to as the infringing devices. WE're before the court as exhibits. with the bill. The defendant filed a general.delllUlTer, which was overruled. Upon its election to stand by the demurrer, .a decree for 'perpetual Injunction was entered, in accordance with the prayer of the bill; and the defendant appeals from the decree.
. ); tiictJtid" .. ,." ....
vol. 63. .
),BuQblg & Bannlng, for
Juda.·e,and BUNN and SEAMAN.,Dis'. . .' P ... ' ·
,Judge (afterstatiQg facts).. JtD opinion filed. . . ".' ·. .(63 ..43 the. . ... ,.a.tprmed the.d re.e en.ter:d . .. upon . OJ:lgmal billagamst .tJJ,eurt appellant, who was defendant lD It i!5 held .the, trade-marks 'pfthe resPectn:-e were estaphshed iil ,pursuance .of the. concontract. of betwee.n the complaindefendant's predeces$Ors lD title, and that the defendto uae the wo'td"Hygeia" only In the combination qualific"!'tions. The in that CR$e, py this. bdl, sho'wlJ.that the contract refeJ,'red to was of the fact 'that the name "Hygeil;l" had attached to the spring at Waukesha, now owned by the defendant, from which'its supply of water is furnished for the market The word "Hygeia" was not taken or obtained as the exclusive right or property' ()tf either party. It is only by association that ithas. become distinctive of the origin or ownership of the water, and has become ap,the complainant's.production when used alone, and to the water of the Waukesha spring when used in the prescribed oombination. The whole extent of infringement alleged here is that the name "Hygeia" is made too prominent in the advertisements and labels 'of defendant, by placing it in larger type or differently oolored,Jetters from 1;he other words which compose the tradename: . The only grotilid upon which the court oould in thisU8e would be that of clear liability to mislead the public. We have carefully examined and considered each of the exhibits placed ·before the court to demonstrate the alleged infringement, and each of them contains the words "Waukesha" and or "¥ineral Spring Water" in. the proper connection with the word "Hygei-a," in such form thatthey are clearly legible and noticeable, lUthongh not so prominent as the latter word. no effort at ooncealment, but it is evident that distinction was s0\l.ght foJ," the name "Hygeja." This is justified by the fact disclosed by the record that there are several rival springs at Waukesha, each having a separate name, and all advertising and marketing their product as Waukesha Mineral Spring Water, underc the name of each spring respectively. To maintain any benefit it may haveoJ,"claim in spring, in competition with its Waukesha rivals, the defendant makes the reasonable claim that there shOuld be opportunity formaking distinction, in its adetc., obf the riamewhich is conceded to identify the spring. Display of this name should be allowed to the extent that the other words of the combination trade-name are not so minimized' that. purchasers or the pUblic will be misled. The bill, read in connection with the exhibits which enter into its allegations, does not present a. case of simulation or device to impose
WERCKMEISl'ER1l. PIERCE & BUSHNF;.LL MANUF'G CO.
upon the unwary public or defraud the complainant. If the value of complainant's trade-name is impaired by the fact that the word "Hygeia" also enters into and is conspicuous in the trade-name of the defendant, the conditions are of its own selection, and produced by the concurrent acts of ..the parties. Adopting a name which was, with at least equal right, the adoption of the Waukesha parties for a portion of their name, the complainant obtained the largest measure of protection which could be claimed for it by the adjustment which placed the word "Hygeia," when used alone, as its tradename, while the other claimant must use it in connection with other words indicating the different origin of water. In the absence of allegation or showing that the defendant so only was apparent, employed the trade-name that the word and the qualifying words were not noticeable to the ordinary ob· server, and in the absence of any appearance of attempt to defraud the complainant or impose upon the public, by similitude, or by SO placing or minimizing the qualifying words that they are not fairly observable, there is no occasion f·or interference by the court. can be exercised for the protection of the parties in such trade-mark as they have established by their acts, but not to make exclusive and more valuable that which was not exclusive in its adoption. The complainant is entitled to protection where the word "Hygeia," as applied to commercial water, is used alone, either in fact or in practical effect; but such use by the defendant does not appear from the allegations of this bill, considered as a whole. The decree is therefore reverseq, at the cost of the com· plainant, and the cause remanded, with direction to dismiss the bill.
WERCKMEISTER v. PIERCE & BUSHNELL MANUF'G CO. (Circuit Court, D. Massachusetts. No. 3.149. L
PAINTING-INTERNATIONAL COPYRIGHT-PROTECTION AGAINST INFRINGEMENT.
August 7, 1894.)
The provisions of Act Maxch 3, 1891, c. 565, § 3 (26 Stat. 1107), as to copyrighting a painting, axe Independel1t of those In regaxd to copyrighted photographs, and infringement of the copyright of a painting may be enjoined without regaxd to whether complainant had taken steps entitling him to import photographs of it.
SAME-EXTENT OF PROTECTION.
A valid copyright of a. German painting gives protection against any reproduction of it, as by photographs. Under Act Maxch 3, 189J, c. 565, § 1 (26 Stat. 1107), providing that the author or proprietor of any painting "and the assigns of any such person," shall, on compliance with the copyright provisions, have the sole liberty of publishing, one to whom a German artist gives the exclusive right of reproduction and publication Is entitled to. copyright, he being within the term "assigns." Under Act July 8, 1870, c. 230, § 97 (Rev. St. 4962), denying one the right to sue for infringement of his copyright unless he give notice thereof by inserting in the several copies of every edition published, on th&
SAME-WHO MAY COPYRIGHT-" ASSIGNS."