838
FEDERaL REPORTER. HOSTETTER and another v. ADAMS and another.· (Circuit Court, S. IJ. ReID York. February 18, 1882.)
1.
LABELS-" HOSTEl'TEU'S STOMACH BITTERS "-INFRINGE?1ENT.
The label and method of preparation for market of " Hostetter's Celebrated Stomach Bitters" is infringed by that adopted for" Clayton & Russell's Celebrated Stomach Bitters," inasmuch as the latter is plainly copied from the former by design, and its general effect is such as to deceive an ordinary observer having no cause to use more than ordinary caution.
HOSTETTER
r.
839
customer,) ana consumers of the genuine bitters; deuse the bottles of the plaintiffs, from which the genuine bit·' tel'S have been used, and pack them in the same manner,.in cases of the same shape, one dozen bottles in each case, in which manner they are sold. 'Tile bill prays for an injunction restraining the defendants from using said spurious label, and for other 'proper relief. The case has been heard on pleadings and proofs. The plaintiff's bottle is of dark glass and has a four-sided body, the sides being of equal size and the faces rectangular. On one side is an engraved label with a white body. This label is substantially as long and as wide as the face of the bottle. Near the top, in four lines, in black, are the words "Hostetter's Celebrated Stomach Bitters," one line. The third and fourth lines have letters of the word in same size and character, larger than' the letters in the first and second lines, The letters in the first line are larger than those in the second line; and of a different character from them, and from those in the third and fourth lines. The letters in the first line and those in the fourth line each of them form a curve, the convexity of which is upward. The second and third lines are horizontal. The letters in the first, third, and fourth lines are shaded. Underneath the fourth line is a horse without harness vaulting in the air towards the left, with his hind feet on the ground and his fore feet in the air, mounted on his bare back by a naked man, with a helmet on, and a flying robe over his right arm, and in his two hands a spear, with which he is striking at a dragon below him on his left. The open mouth of the dragon is near the left knee of the rider, and the point of the spear is just above that knee. The body of dragon passes under the horse, and his tail comes around the right hind leg of the horse and nearly reaches the body again. In a fore paw of the dragon, near the end of his tail, appears to be a piece broken off from the head of the spear. The horse has a flying mane and a sweeping tail. The horse, man, and dragon are dark on a white ground. Below them is a shield, commencing at a little below the middle of the length of the label. The shield has a dark ground. On it are letters printed in white. There are 16 lines of lettel·s. Lines 1,2, ,4, 7, 8, 9, 10, 12, 13, 14,itnd 15 are the same size of type. ' The reading of the 16 lines, divided into lines, is this: {I) "The best evidenceof the merit of an article is" .(2) "the disposition to,pro(h:\ce ,counterfeits;" (3) "and we regard it as "(4) "the strongest mony to the value of" (5) "Hostetter's" (p) Stomach Bitters i' (7) Il,that'attempt;aof that description have" (8) "been frequent. .A due eonsid·)
840
FEDBRAL REPORTER.
eration of" (9) "the public welfare has induced us to" (10) "obtain a fine engraving, of which" (11) .. this is a fae-simile," (12) "and to append our note of" (13) .. hand, which cannot be" (14) "counterfeited without 0' (15) .. the perpetration:' (16) "of a felony."
The word "and" and the word "as," in line 3, are smaller than the other letters. The words "we regard it," in line 3, and also lines 5, 6, 11, and 16, are on a black ground darker than the rest of the ground, and the letters are somewhat larger than the rest. All the letters in t.he shield are capitals. The line of the top of the shield c:msists of two curves of equal length, starting from an apex in the middle of the width and concave upwards, and having a uniform sweep, and alike, and rising each to a point as high as the starting point, and then each falling off, by a short concave upward curve, to a point. Then the two sides of the shield sweep around downward, by equal curves, to the center of the width of the label and the lower point of the shield, completing the outline of the shield. The space on each side, between the outer edge of the shield and a border around the label and a horizontal line running across at the lower point of the shield, is filled in with engraved work of waving, irregular figures. Underneath the shield, in a parallelogram, is a promissory note for one cent, payable to the bearer on demand, signed "Hostetter & Smith." In the middle of the width of the upper part of the note is a small circle, having in it the head and bust of an aged man with a long white beard. There is a border around the whole label. The defendants' bottle is of the same size, color, shape, and material as the plaintiffs', and many of the defendants' bottles are old bottles of the plaintiffs with the name "Hostetter" blown in the glass. The side which has that name on it is covered by the defendants' label. The defendants buy such old bottles when empty which the plaintiffs have sold in the market with bitters in. On one side is an engraved label with a white body. This label is substantially as long and as wide as the face of the bottle, and is of the same size as the plaintiffs' label. Near the top, in four lines in black, are the words "Clayton & Russell'lil Celebrated Stomach Bitters," one word in each line. The third and fourth lines have letters of the same size and character, larger than the letters in the first and second lines. The letters in the first line are larger than those in the second line, and of a different character from them, and from those in the third and fourth lines. The letters in the first line and those in the fourth line each of them form a curve, the convexity of which is
HOSTETTER V. ADAMS.
84:1
upward. The second and third lines are horizontal. The letters in the first, third, and fourth lines are shaded. The appearance presented by those four lines, as to tho size and character and shading of the letters in the corresponding lines, and as to ornamentation in flourishes and dashes, is identical with the appearance presented by the corresponding four lines in the plaintiffs' label, as to the same particulars, except the 'difference resulting from substituting the words "Clayton & Russel's" for the word "Hostetter's." Underneath the fourth line is a horse, with harness and caparison and saddle upon him, vaulting in the air towards the right, with his hind feet on the ground and his fore feet in the air, mounted by it man with clothing on his trunk and feet, and a helmet, with wings on his head, and in his right hand a spear, with which he is striking at a scor. pion on the ground in front of him. The horse has a sweeping tail. The horse, man, and scorpion are dark on a white ground. They and the four lines above them occupy respectively the same space up and down as the corresponding parts in the plaintiffs' label. Below them, commencing at the same point as in the plaintiffs', is a shield, which has a dark ground, with letters printed on it in white. There are 15 lines. The lines are all the same size of type, and the size of the type in line 1 in the plaintiffs'. The reading of the 15 lines, divided into lines, is this: (1) "The bitters of Clayton & Russell will be" (2) "found a highly aromatiC liquid and en." (3) ,. tirely free from injurious sulJstances." (4)" One wineglassful taken three times" (5) "a day before meals will be a swift" (6) "and certain cure for dyspepsia a" (7) "mild and safe invigorant for delica-" (8) "te females a good tonic preparation" (9) "for ordinary family purposes a" (10) "powerful recuperant after the" (11) "frame has been reduced by " (12) ,. sickness an excellent app-" (13) etizer and an ajtreeable" (14) "and wholesome" (15) "stimulant."
All the letters in the shield are capitals. The line of the top of the shield is made up of four curves, and corresponds in all respects with the line of the top of the shield in the plaintiffs'. The shield is the same size and shape as the plaintiffs', and has a corresponding space on each side, filled in with engraved work, waving in character, though larger in detail than in the plaintiffs'. The lower point of the shield comes down to the same point as in the plaintiffs'. Underneath the shield, in a parallelogram, are the words: "Venders do not require a liquor-dealer's license, being a medicinal compound." There is a border around the whole label of about the same width as
REPORTER.
in the plaintiffs',thongh of a different character. There is a narrow space of white in the defendants'. all around the' 19vv6rparallelogram, and the aide lines of white are carried up on each !lide of the :top of the shield, and then continue down around the outer edges of the shield, differing in these respects from the plaintiffs'. 'rhe words beginning with "one wineglassfuI," to the end, at "stimulant," are in a label of gold letters, printed on a bronze ground, which is on another face of the plaintiffs' bottle. It is shown that there are no such persons as Clayton & Russell, and that the defendants' label was prepared from the plaintiffs' by intentionally making the parts in it which al'e corresponding parts in the plaintiffs', to be so like. It is plain that it is a copy from the plaintiffs' by design. VariationR are made of such a character as to be cabable of discernment and description. But the general effect to the eye of an ordinary. person, acquainted with the plaintiffs' bottle and label, and never having seen the defendants' label, and not expecting to see it, must he, on seeing the defendants', to be misled into thinking it is .what he has known as the plaintiffs'. The .size, color, and shape of the four lines of letters at the top of .the label being, as to the three .lower ones, identical, and, as to the upper one, differing only in the general effect of the horse and his rider, the size and shape and color of the shield, the white letters in it, and their size and arrangement in lines contracting iIi length towards the lower point of the shield, the whole iii black on awhitegroand, and the border, give an affirmative resemblance calculate.d to deceive an ordinary observer and purchaser, having no cause to use more than ordinary caution, and make him believe he has before him the same thing which he has before seen on .theplaintiffs"bottle and expects to find on the b.ottle he is looking' at. The differences which he would see on having his attention called to them are ·not 'Of such a character' as· to overcome the resemblances to' the eye of a person expecting to see only the plaintiffs' bottle and label, and ha:vingno knowledge of ,another. The testimony to the above effect is of, great strength. The. plaintiffs have no exclusive right to make the bitterE\., Their trade. mark ia not .in the words Stomach Bitters"" nor toa bottle, oithe size, shape,and,color have ;tl18Y any of the one But' .the:elltirEjstyle of. tllehr bottle l!tnd label, of .those: words, a' pl!-rt, is, in. conn,ectiqIl;, witb. .the above men iu'Y llle defendallts':p()We!tnd label are like theirs, the mark of their tmde. Willi(wLB v. Johnson, 2
THE CITY OF SALEM:.
848
Bos. 1; McClean v. Fleming; 96 U. S. 245; Frese v.BuchoJ, 14 Blfttchf. 432; Coleman v. Crump, 70 N. Y. 573; Morgan's Sons Co. v; Troxell, 23 Hlln. 632, and Cox's Manual, Case, 674; Sawyer v. Horn; Cox's Manual, Case, 667; Mitchell v. Henry, 43 Law Times Rep. (N; S.) 186. The evidence as to transactions after the filing of the bill is admissible. It comes in not to show infringement, but to characterize the practical use of the subject-matter of the suit. The objection as to the recalling of witnesses is overruled. The plaintiffs are entitled to an injunction, and to a reference to a master to take an account of profits, and to the costs of the suit.
THE
CITY
OF SA.LEM.
(District Court, D. Oregon. 1. PLEADmG-!:)UFFICIENCY OF AN ANSWER.
March 4, 1882.)
Semble that an allegation in an a::Jswer that the respondent is "Ignorant" 01 a matter alleged in the libel is sumc.ent.
2.
VESSELS-LIEN FOR LABOR-HOME PORT-STATE LAW.
The libel alleged that S. contracted with R, the owner of a steam-boat, to repair her in hel' home port, and employed the libellants to work at said repairs as ship carpenters, Held, that upon the facts stated, and under the lien law of Oregon, (Sess, Laws 1876, p. 9,) which gives a lien upon a boat for the value of labor done thereon at the request of a contractor with the owner, the libellants , had a lien for their wages which might be enforced in the admiralty in a suit in rem, irrespective. of the state of the accounts between S. and R., or the failure of 8. to fully perform his contract. S LIEN OF. MA'.I'ERIAL-MAN-NATURE AND WAIVER OF.
The lien of the material-man, under the Oregon act, does not depend upon any expressed intention or conscious purpose on his part to claim it, but it is an incident which the law attaches to the performance of the labor or the delivery of the materials under the circumstances stated, and can only be waived or discharged by an agreement or understanding with him to that effect.
David Goodsell, for libellan William H. Effinger, for respondent. DEADY, D. J. This suit is brought to enforce a lien in favor of the libellants against the steam-boat City of Salem, Ii. vessel engaged in the navigation of thew-aters of this state, and owned, enrolled, and licensed 'this port. , The libel alleges'that during the months of November and Detlembet, 1881, and January, 1882,said vessel was in the lawfql posses-
at
844
FEDERAL REPORTER.
sion of J. F. Steffen, for the purpose of being repaired; that during those months the libellants, Charles Nelson, Peter Johnson, and Jonas Carlson, at the request of said Steffen, worked upon said boat as ship carpenters "at the agreed rate of wages" of four dollars per day,-Nelson for 48 days, Johnson 22 days, and Carlson 29 days; that there is due said libellants on account of said labor as follows: To Nelson $192, to Johnson $88, and to Carlson $116, no part of which has been paid, and for which they each claim a lien upon said boat under the laws of Oregon and under the general admiralty law. The respondent, William Reid, answering the libel, says in article 1 that the boat belongs to respondent, and was only in possession of Steffen t,o be repaired upon a contract between them, but that said Steffen was not the agent of said owner "for the purpose of procuring any work or labor" on said boat, nor for any "purpose save that of executing the work he had contracted to do." In article 2 the respondent says that he is "ignorant" of the employment of the libellants upon the boat, and their claim to a lien thereon for their labor. The third article states, in effect, that Steffen abandoned his contract and the respondent was compelled to finish said repairs, and that there is now due said Steffen thereon the sum of $927.50, which sum the respondent is willing to pay to the creditors of the latter entitled thereto, but is prevented from so doing by the process of the state circuit court issued at the suit of Steffen's creditors, and asks that the respondent be discharged without costs. The libellants except to the second article of the answer as insufficient, and to the third article, and so much of the first as states that Steffen was not the agent of the respondent to employ the libellants, for impertinence. The exception for insufficiency is disallowed. When a respondent has no knowledge concerning the matter contained in any article of a libel, according to the precedents, it seems that it is sufficient to say that he is ignorant thereof; though I think it would be well to require him also to state what his belief about the matter is, as in answer in chancery. Ben. Adm. § 473. The contract of a material-man is a maritime one, and may be enforced in admiralty. Ben. Adm. §§ 267, 268; The St. Lawrence, 1 Black, 522; The Eliza Ladd, 3 Sawy. 519. All persons who are employed to repair a vessel or do work npon her are material-men within this rule. 1 Pars. Ship. & Adm. 141; Ben. Adm. §§ 267, 268. By the general maritime law material-men have a lien upon the vessel for the services or supplies furnished by them; but by the admiralty law of the United States, as expounded by its courts, rna·
THE CITY OF SALEM.
845
terial-men have no lien for services or supplies furnished a vessel in her home port unless given by the local law ; but when so given such lien may be enforced in the admiralty. De Lovio v. Boit, 2 Mas. 414; The Planter, 7 Pet. 32,1,; The Harrison, 1 8awy. 353; The Gen. Smith, 4 Wheat. 438; The Lottawanna, 21 Wall. 579; The Ca,nada, 7 FED. REP. 732. The only other question arising upon these exceptions is, have the libellants a lien upon the vessel for their services by the locallaw,-the law of Oregon? By the act of October 19, 1876, (8ess. Laws, 8,) section 17 of the act of December 22, 1853, (Or. Laws, 656,) "concerning the liens of mechanics, laborers, and other persons," was amended so as to provide, among other things, that "every boat or vessel used in navigating the waters of this state · · · shall be liable and subj ected to a lien · · · for all debts due to persons by virtue of a contract, expressed or implied, with the owners of it boat or vessel, or with the agents, contractors, or subcontractors of such owner, or any of them, or with any person having them employed to construct, repair, or launch such boat or vessel, on account of labor done, or materials furnished, by mechanics, tradesmen, or others, in the building, repairing, fitting and furnishing, or equipping such boat or vessel. · · ." Prior to this amendment the act only gave a lien for the value of labor or materials done or furnished in pursuance of a contract with "the master, owner, agent, or consignee" of the boat. But, when done or furnished for a contractor, not such "master, owner, agent, or consignee," the parties had no lien, and often lost the value of their labor or materials by the failure or dishonesty of the contractor. To remedy this evil the act was amended so as to give all persons a lien for labor or materials furnished in pursuanoe of a contraot with any person authorized to employ labor or purchase materials to repair, fit, furnish, or equip a boat engaged in the navigation of the waters of this state. The agent, contractor, or suboontractor, or the owner of a boat, is necessarily authorized, by the nature and terms of his agreement of employment, to procure the labor and materials necessary to aooomplish what he is authorized by or contracted with the owner to do thereon or thereabout. The very general phrase in the amendment -"any person Iavinj:{ them [material-men] employed to construct, repair," etc.-must be construed to mean any person having them so employed by the authority of the owner. For it cannot be supposed that the legislature intended that the u any person" mentioned in the
section applies to any other than a person within the category of persons just before enhm;erated; that is, a person sustaiuing some relation to the owner that, authorizes him to employ the labor or purchase the material in question. A mere trespasser or intruder upon the boat of another surely cannot fasten a lien upon it for the value of labor and materials used in nnahthotized repairs thereon. As was said by this court in The Augusta, 5 Am. L. T. Rep. 495: "A person who puts 'work or materials into the ship of another as a mere trespasser or intruder, does not thereby become a material-man, entitled to a lien thereon for the value of such work or materials. But the consent of the owner may be implied from the circumstances of the case. For instance, when the respondent [the owner] contracted with Rutter to repair the vessel, it was necessarily implied ,that he might employ the libellants, and they might be so employed ,to' work thereon. They are, therefore, not intruders or strangers to this vessel, but persons' employed to work thereon with the implied consent of the owner. " It is,admitted by the answer that at the time alleged by the libellants 'that they. labored on the Oity of Salem she was in the possession of Stef1en under a contra;ct with the respondent to repair her. This being so, he was authorized to employ the libellants to do any work up0'n,her within the scope of his contract. Assuming that the libella,uts 'Were employed by Steffen, and did the work on the boat, as they allege, they thereby acquired a lien thereon for the value of their labor. Neither is it necessary that they should, at the time of performing the labor, have expressed a purpose or consciously intended to claim a lien therefor upon the vessel. The law gives the lien upon ,the performance of the laboras8l means of securing the payment for it It is,an incident which the law attaches to the transaction, and can only be waived or discharged by an agreement or understanding to that efl'ect ont?e part of ,the person entitled to it. " These exceptions for impertinence are well taken. It matters not, , so fat as the claims {jf the libellants are concerned, what controversy exists between Steffen and his creditors, or how the respondent is involved in it-whether as garnishee or otherwise. If they performed . the work On the respondent's boat, as they allege they did, they have , a lien thereon for its value, irrespective of the state of the accounts between h!m and Steffen, and are entitled to maintain this suit to 'estltb1Ji'Sh their claim, and enforce such lien by the sale of the boat. They are not creditors of the respondent, and the ouly relation
one
'fHE eIly. 0)1"
between him and them arises out of the fact that he is the owner of a boat upon which they claim.a lien for!'labor. On that account he is entitled to contest the fact of the indebtedness, or to show that the lien given by the law thei-e'for has been waived or discharged, or failing in these to discharge the lien by the payment of whatever sum is found due the libellants, and thereby prevent the sale of the boat. ' The exception for insufficiency is disallowed, a.nd the exceptions for impertinence are allowed. See The De 8met, ante, 483, and note.
l'HE CITY OF SALEM.
(District Court, D. Oregon.
March 4, 1882,)
DEADY, D. J. This s.u-it is hroughtby .Charles Brown against the city, of Salem to enforce a lien thereon for the sum of $60 for labor done in repairing her at the request of Steffen, the contractor. The: pleadings and circumstances are the same as the foregoing, and the same order will be therein·.
, ,
'.:.," "
I