COLLINS PLATT V. FINLAYSON
COLLINSPLATT et al. v. FINLAYSON et· aL (Olrcuit Court, S. D. New York.
August 6, 1898.)
1'BADE-MARKS-UNFAIR COMPETITION-GEOGRAPHICAl, NAMES.
The false Use of a geographical name will not be allowed by the federal courts, when it is so used to promote unfair competition and to induce the sale of spurious goods.
2. SAME-IMITATIVE LABELs-PnOOF OF SALES.
'l'he federal courts do not require specific proof of purchases by individuals actually deceived, when the labels themselves show an attempt at deception which is well calculated to deceive.
This was a suit in equity by Hawtry Collinsplatt and others against Alexander M. Finlayson and another to enjoin unfair competition in trade. The cause was heard on motion for a preliminary injunction. Roger Sherman, for the motion. De Los McCurdy, opposed. LACOMBE, Circuit Judge. Whatever may be the decisions in the state courts, it is abundantly settled by authority in the federal courts that they will not tolerate a false use of a geographical name, when it is so used to promote unfair competition and to induce the sale of spUI'ious goods. Nor do these courts require specific proof of purchases by individuals actually deceived, when the labels themselves show an attempt at deception which appears to be welkalculated to deceive. In the case at bar it is conceded that the gin made and sold by defendants is not made at Plymouth, but is distilled in this country. 'l'hey are seeking to palm off a domestic as an imported article. Inspection of the labels must carry conviction to any unbiased and intelligent mind that the later label was prepared by some one who bad the earlier one, and that it was designed, not to differentiate the goods to which it was affixed, but to simulate a resemblance to complainant's goods sufficiently strong to mislead the consumer, although containing variations sufficient to argue about should the designer be bl'ought into court. '.rhis is the usual artifice of the unfair trader. It does not deceive the first purchaser from the manufacturer, but it is sutIident to mislead the subsequent retail pUI'chaser, and thus, being sold at a less price than the genuine article, it eventually, if not enjoined, will interfere with the sales of the genuine article. It is quite common in such cases to find assertions by defendant tbat his goods are very superior to complainant's; that he has no intention to deceive anyone; that his labels are not at all an imitation; that in designing a form of package he has carefully endeavored to select a design which should distinguish his goods from all other goods in the world, including complainant's; and that his sole object has been to establish and maintain a distinct reputation for his own goovs, as something different from complainant's. When there is a marked similarity in the labels, but little weight is given, by a court of equity, to such statements, and the mere circumstance that they are sworn to does not tend to increase' respect for them, nor for the conscientiousness of the affiants who make them. The penQency of. a· a.ction in the state court seems to present no
bar to the relief asked for.. The injunction is continued until tl'ial, with a further clause enjoining use of the word "Plymouth" upon any packages containing gin not .in.fact made ,in Plymouth.
," . r
BURNETT et at v. HAHN. (Circuit Court, S. D. New ,York. A.ugust 6, 1898.)
rnFBrN'OEMENT OF TRADB' MARK AND NAME .' BROUGHT-INJUNOTION."
When the article sold lllnnferior and' spurious, and the packages sumresemolll complainant's to make it apparent that the design is to . ." deceive the consuming pUblic, injunction wlll be granted, although defendatit is a' dealer only, who purchased from [the originator of the ,fraud, and, since action brought,. has voluntarily, ceased to deal in goods.
CEASING'SALE A.FTER SUIT ' .
Solomon Leistenstein, for the motion. George Hahn, opposed. LACOMBE, CircuitJudge. The label in this case does n,ot bear as close a likeness to complainants' as is found in the Plymouth Gin Case (Collinsplatt v. Finlayson, decided to-day, 88 Fed. 693), but the spurious of the goods sold is frankly admitted. The label somewhat resembles the complainants' ; the style of bottle and of capsule are close copies; the label, by the use of the Union Jack, suggests an English origin; the designation "Old Tom," long associated with gin made by complainants and their predecessors, is used by defendant; while the statement that defendan"Vs, gin is manufactured by "Sir Edward Bruce & Co.,"'atthe "Royal Distillery, London," is strongly suggestive of the words on complainants' labels, "Sir Robert Burnet & Co.,"and"Vauxhall Distillery, London." ,In view of the concession upon the argument that the packages contain a cheap domestic gin, iUs perfectly apparent that the designer of this form of package has been chiefly concerned in an attempt to deceive' the consuming public. Pefendant is a dealer only, who has purchased from the originator of the fraud with the intention of selling to otllers. Neither that circumstance, however, nor the further one that he has voluntarily ceased to deal in the goods since action begun, should deprive the complainants of their injunction, if otherwise entitled to it. The fraud being palpable, complainants may take injunction against the sale of gin in packages. such as Exhibit B, or in similar packages, which, by collocation of label, bottle, stopper, capsule, and description, suggest the presence in the package of/complainants' product, when the gin so sold is not in fact made by "Sir Edward Bruce & Co.," and was not 'in fact distilled at the "Royal Distillery, London."
N. K. FAIRBANK CO. v. LU;CKEL. KING & CAKE SOAP CO. Court, D. Oregon. July 15. 1898.)
One using "lJ'lJ,irbank'il Gold Dust" as a name for washing powder 1a Dot entitled to enjoin the use by another of the words "Gold Drop," where the packages, though slmllar in size and shape, are totally dissimilar In the-