·202
, FEDERAl, REPORTER·.
HANSON
v.
JACCARD JEWELRY
CO.
(Oircuit Court, E · .D. Missouri, E · .D. September 19. 1887.) 1. COPYRIGl;[T-COMPILATION Oll' WAR RECORDS.
A compilation from voluminous public documents. so arranged as to show readily the date and order of battles fought during the civil war, together with a list of casualties. may ,be copyrighted.
2.
SAME-ACTION FOR INFRINGEMENT-LEGAL TITLE SUFFICIENT TO Jl.IAINTAIN.
An action forthe infringement of a copyright may be maintained by the holder of the legal title thereof, though the beneficial ownership be in another. Application was made by the plaintiff for an order pendente lite, restraining the defendant from circulating a guide,book containing matter infringing upon the copyright of plaintiff. Held, that the question of the damage that might be .sustained by the defendant upon granting the order. as compared with that to the plaintiff by denying it. and the financial ability of the defendant to respond to any damages assessed against him, and the fact that there was no intent on thll psr.t ot the defendltnt to appropriate the property of the plaintUJ.and that it was done without the knowledge of the defendant byone employed to compile the work, are all considerations which it is proper for the court to weigh in determining the question of granting or denying the application.
8.
SAME-PRELIMINARY INJUNOTION-SITUATION OF PARTffiS TO BE CONSIDERED.
InEquity. , George P; Strong, forcomJ!lainant. Horatio D. Wood, for respondent. In the case of A. H. Hanson v. TheE. Jaccard Jewel1"!J has been made for an injunction pendente lite. From the mo;ving. papers on file it appears that A. H. Hanson, the general pasl3enger agent of the Illinois Central Railroad Company, in April last took out a copyright on a pamphlet entitled: "1861-1865. Battles for the Union,a.nd the Union Forces Engaged Therein, Together with a Record of As the title implies, the publication conta.ins a record of battles fougb,tduring the late war, arranged in chronological order, and of the Uni.onforces epgaged, together with a list of casualties. The materials for. the publication were collected and arranged by thomas F. Nelson, under employment of the Illinois Central Railroad Company, but it is probAble that in arranging the material he acted to some extent u,nder the direction of Hanson, .the general passenger agent of the road. The pamphlet on its cover contains a.picture of the commander in chief of the Grand Army of the Republic; it is dedicated to that or· ganization by the Illinois Central Railroad Company; it purports to be presented to the public with the "compliments of the Illinois Central Railroad ljompany;" and it contains a map of that company's railroad system, showing its connections, etc. From these and other facts it is obvious that the pamphlet in question was compiled and published at the instance and expense of the railroad company, and that it was designed by that company for gratuitous cil-· culation at and prior to the annual encampment of the Grand Army of
Co.,
THAYER, J.
HANSON'fl; 'J;ACCARDJEWELRY
co.
the Republic, as an advertisement ofits railroad system. 'On the other hand, the moving papers show that defendant. for the purpose of advertisingits own business during the encampment, and the business of several other merchants doing business in the city of St. Louis, has pub-. lished, also for gratuitous circulation, a pamphlet entitled "Jaccard's G. A. R. Guide to the City of St. Louis." It is admitted that defendant about 25 pages of the printed mathas incorporated into its ter which is contained in the publication copyrighted by complainant. the samebeing.the record of battles and casualties as compiled and arranged by Nelson. In all other respects the publications are unlike. An injunction is asked to restrain the further circulation of defendant's guide-book. Several objections have been interposed against the grant. ing of an interlocutory injunction. In the first place it is urged that the subject-matter of complainant's publication is not such as to warrant a valid copyright, the same not being an original composition, but merely a compilation of facts gathered from various public records. This objection is clearly lmtenable. A compilation made from voluminous public documents, and so arranged as to show readily the date and order of certain historic events, such as battles or sieges, and the forces engaged therein, and the ca.':lualties attending the same, may be copyrighted, because such publications are valuable sources of information and require labor,care, and some skill in their preparation. Drone, Copyr. 152-154, inclusive, and cases cited; Lawrence v. Dana, 2 Amer. Law T. R. (N. S.) 423. It is further objected that no injunction should issue because on the proof as it stands a valid copyright in behalf of the complainant, Hanson, is not shown, he being neither the "author nor proprietor" of the publication within the meaning of section 4952 of the Revised Statutes of the United States. With respect to this objection it is sufficient to say that under the proof as it stands it is probably true that complainant merely holds the legal title to the copyright, while the beneficial ownership (the equitable title) is in the Illinois Central Railroad Company. It has been held, however, in the case of lJittle v. Gould, 2 Blatchf. 366, (after careful consideration,) that the acts of congress do not prohibit the taking out of a copyright ill the, name of a trustee for the benefit of some third party who is the" author of-proprietor," and that a defendant, proceeded against by the holder of the legal title to a copyright, cannot take any advantage of the trust relation existing between such holder and some third party. See, also, Drone, Copyr. 260,261, and cases cited. In view of the foregoing authorities, the court is of the opinion that the second objection urged against granting a restraining order is untenable. Is is finally urged that no injunction should issue at this stage of the case, because the defendant is financially responsible, and because complainant's pamphlet was only intended for gratuitous circulation by the Illinois Central Railroad Company, and because no substantial damage of the copyright from the circan result to the legal or equitable culation of defendant's guide-book. It is furthermore urged that de-
204
J'EDERAL REPOaTER.
{endant's guide-book contains much advertising matter of value to itself and other merchants; that it has been printed by defendant at great expense; that the objectionable matter contained therein, that is to say, the record of "Battles and Casualties," was inserted therein by the person employed to compile the same, without the knowledge of defendant's officers as to the source from whence the record was derived, and without any intent on their part to appropriate the complainant's property, and that it would be productive of great damage to defendant and others to enjoin the cireulation of its guide-book at this time. ConsiderationA of the kind last mentioned are entitled to great weight 011 an application for a preliminary restraining order, as such applications address themselves to the sound discretion of the court in view of all the circumattending the particular case. On an application for an injunction pending suit, it is proper for the court to consider the harm that would be done to the complainant by refusing such an order, in comparison with the damage that might be sustained by the defendant in consequence of granting the same. The ability of the defendant to respond to any .damages that may be assessed on final hearing is also an important element; and in these respects there is nodiflerence in the rule governing cases arising under patent and copyright laws and other equitable proceedings. Scribner v. Stoddard, 19 Amer. Law Reg. 433; Forbush v. Bradford, 21 Month. Law Rep. 471; Ohase v. Sanborn, 4 Cliff. 306; Lodgev. Stoddart, 9 Reporter, 137; Drone, Copyr. 524. In the present case I am persuaded that the damage which complainant anticipates from the circulation of defendant's guide-book would be trifling in comparison with the damage defendant and others would sustain if the defendant was precluded at this time from putting in circulation a large amount of advertising matter which is embodied in the guide-book in question. Indeed, considering the use intended to be made by complainant of his publication, it is doubtful if he or the corporation he represents would be prejudiced to any extent by a refusal of an injunction at this stage of the proceedings. In any event., the defendant is pecuniarily responsible for whatever damage may be ascertained on final hearing. Guided by these considerations, and influenced by the fact that there evidence that defendant's officers were aware of the infringement of the copyright prior to the actual printing of the guide-book, the comt will refuse a preliminary restraining order.
MOXIE NERVE FOOD CO. MOXIE NERVE FOOD
!1.
BAUMBACH. and others.
205
Co. V.
BAUMBACH
(Oircuit Gourt, E. D. Texas. July 11, 1887.)
1.
TRADE-MARKs-h."FRINGEMENT-BEVERAGE CONTAINING ALCOHOL.
Where, in an action for the infringement of the trade-mark of a beverage, it is sought to be shown in defense that the beverage contains aleohol, and the evidence shows thM some chemists found a teaspoonful of alcohol in a quart, and others much less, and that it was used to cut the flavoring oils and mostly evaporated, the defense is not sustained. "
SAME-SUI'!.' BY LICEN8ER AGAINST bTRANGER.
The owner of a trade.mark is not estopped from bringing suit to enjoin an infringement of it by the fact that he has made a third party his licensee for the territory in which the defendant carries on the business as to 'ijlhich the infringement is charged. In suit to enjoin an infringement on a trade-mark, it appeared that com}?laiIiant. in 1885. owned and used a trade-mark, consisting of the word Moxie," With a label containing a picture and descriptive words, in the sale of a certain beverage; thatit also used a champagne bottle wrapped in a peculiar light brown paper, with the words "Moxie Nerve Food" printed prom. inently thereon; that after complainant had carried on business for some time, and acquired a"large sale, defendant began to manufacture a preparation similar in taste, color, and flavor to that of plaintiff, and similarly put up in a champagne bottle, with a label and wrapper sufficiently resembling complainant's label or trade-mark and wrapper to deceive the general pubIic, and bearing the words, "Standard Nerve Food, "with the words, "Genuine. Beach and Claridge, " written across the label. Held, that defendants would be enjoined from putting on the market for sale any packages or bottles of the style of champagne bottles in use by complainant, when such similar bottles contained a fluid resembling that manufactured and sold by complainant as Moxie nerve food, in taste, flavor, or appearance, and from using the words "Nerve Food," either alone or with other words, upon the outside or upon the wrapper of any package containing such a fluid. .Under Rev. St. Me. c. 48, § 16 et seq., providing thll.t "three or more persons may associate themselves together by written articles of agreement, for the purpose of forming a corporation to carryon anl. lawful business, including corporations for manufacturing, " etc.· and that' from the filing of the certificate of incorporation, duly certified as required by that act, the signers of such articles shall be a corporation, as if incorporated by a special act, " etc., it is no defense to an action brought by such a manufacturing corporation, when it is shown that its office is located and its elections are carried on in the state where it is incorporated, and its annual return made to the secretary of such state, to allege that the incorporators were and are all residents of another state, and that it has not manufactured at all in its parent state, but carries on all its manufactures in another state.
SAME-INJUNCTION To"RESTRAIN INFRINGEMENT.
4.
CORPORATIONS-ORGANIZATION-NoN-RESIDENTS·
Motion to Dissolve Injunction. C. An80n Jones, F. S. Burke, and Hutcheson, motion. Scott & Levi, opposed. SABIN, J.
Seara, for the
D., early in 1885, manufactured a beverage called by him "Moxie Nerve Food," and, deeming it of great value commercially, filed with the United States commissioner of patents an application for a trade-mark therefor on the sixteenth day of July, 1885, and which was afterwards registered
In this case it would appear that Angustin Thompson, M.
