WlI. ROGERS MFG. CO. V. ROGERS.
The government contends that "products of coal tar" are, by the phraseology of this paragraph, excepted from its operation. We do not so read the act. On the contrary, free entry is accorded to "coal tar, crude"; "all coal tar preparations, except medicinal coal-tar preparations"; and "products of coal tar, not colors or dyes." There is no dispute, on the testimony, that the article in question is one of the five products of distillation of coal tar, and, unless it is shown to be specifically provided for elsewhere, is entitled to free entry, under paragraph 443. The only "special provision" relied upon by the appellant is paragraph 60, it being contended that the article is therein referred to as distilled oil. The testimony, however, abundantly sustainil the proposition (which, indeed, was conceded on the argument) that this "dead oil" was not known, commercially, as a distilled oil; and the government chemist testified that in the terminology of his profession, and according to his understanding, "dead oil" would not be classed as a distilled oil. Since it is neither com· mercially nor scientifically known as a distilled oil, it does not come within the enumeration of paragraph 60. In view of the testimony, it will not be necessary to discuss the other questions raised on the argument, viz.: Whether the words "known as" should not be con· strued as meaning "known commercially as"; and whether paragraph 443, providing for all "products of coal tar," is not more specific than is paragraph 60, providing for "products or preparations known as * * * distilled oils," but without any such restriction as to use as was found in the paragraph for "acids," which was discussed by this court in Matheson & Co. v. U. S., 18 C. C. A. 143, 71 Fed. 394. The decision of the circuit court is affirmed.
WM. ROGERS MFG. 00. v. ROGERS. (Circuit Court, E. D. New York. No.2.
January 31, 1898.)
One selIlng goods in packages prominently marked with his own name and initials, not collocated with other words tending to induce greater confusion than would naturally result therefrom, cannot be restrained by an· other of the same name, having a long-established business thereunder, even though the former expected that unscrupulous dealers would oJrer his goods as the goods of the latter.
This was a suit in equity by the William Rogers Manufacturing Company against William A. Rogers for alleged infringement of a trade-name. The cause was heard on a motion for preliminary injunc· tion. C. E. Mitchell, for the motion. Wm. C. Beecher, opposed. LACOMBE, Circuit Judge. Defendant's right to use the ordinary abbreviation of his name, "Wm. A. Rogers," was settled by the decision of the circuit court of appeals (17 C. C. A. 575, 70 Fed. 1019); and
,84 FEDERAL REPORTER.
in no instance does it appear that be has put up his goods, or offered them for sale, in any form of package which directly or indirectly describes them otherwise than as the goods of "Wm. A. Rogers." There, seems very little doubt that he has availed of the similarity of name, which naturally tends to confound his goods with those of the orig· inal Rogers, who built up a valuable trade in plated ware years before defendant went into the business. But, so far as the mere name produces such confusion, plaintiff has no cause of complaint. It is a reasonable inference from all the testimony that defendant expected that unscrupulous dealers would offer his goods as tho:>e of one or other of the original manufacturers, whose name was well known to, and popular with, consumers. The two advertisements reproduced in complainant's brief are most persuasive to that conclusion. But both of those advertisements contain his own name in prominent type, and the statements, "Our goods are 'Rogers' goods," and "The genuine Rogers goods, as used by U. S. government," etc., are technically ac· curate. There are some points of resemblance between this case and those of Baker v. Sanders, 26 C. C. A. 220, 80 Fed. 889, and Hoff v. Tarrant, 22C. C. A. 644, 76 Fed. 959, but there is not enough to warrant an injunction, so long as defendant's goods are packed and labeled with his own name, WIll.' A. Rogers, not collocated with other words in such manner as to induce any greater confusion in the minds of purchasers than would naturally be produced by the use of such name. Motion denied.
AIR-BRUSH MFG. CO. v. THAYER et al. (CirCUit Court, N. D. Illinois, N. D. 1. April 14, 1891.)
TRADE-MARKS-DESCRIPTIVE NAMES-" AIR BRUSH."
Whether or not a given word is a trade-mark is a question ot tact. The evidence does not show the words "air brush" to be used as a mark of origin by complainant. These words are apparently used descriptively by both parties.
FEDERAl, TRADE-MARK STATUTE.
The case rests ()In the federal statute; but defendants have not affixw complainant's registered mark to merchandise of substantially the same de· scriptive properties as that described in the registration.
This was a suit in equity by the Air·Brush Manufacturing Company against Thayer and others for alleged infringement of a trade-mark. L. L. Morrison, for complainant. Barton & Brown, for defendants. SHOWALTER, Circuit Judge. I do not find from the evidence that complainant in fact uses the words "air brush" as a mark of origin. Oomplainant calls the patented article made by it an "air brush." The name of the complainant company, "Air-Brush Manufacturing Company," is stamped on said article; but the mark "air brush," as a sign of origin, is not there. In the specification of patent No. 310,754 the patentee says: "My invention relates to that class of instruments or machines designated as 'air brushes,' for the distribu tion of pigments by means of an air blast to produce portraits, land·