888
FEDERAL REPORTER.
SAWYEnCRnTAL BLuE Co. '11. HUBBAnD.
(Oircuit Oourt, D.1Jfo,88o,chu8eti8. September 1. TRADE-:MARx-EoTTLES-SHAPE AND'
1887.)
Plaintiff used on the bottles, in which it sold liquid bluing, a bright metalliccap of tin, extending down ,over about half of the rim at the mouth of the botOe, the cap having six perforations. He!a, that defendant should be restrained from using for the sale of his bluing a similar cap on l,Jottles of the same shape and appearance as those of plaintiff. Where ,both parties are manufacturers of liquid bluing, the defendant may be restrained from using for the 8,81e of the bluing manufactured by him old bottles of the plaintiff having plaintiff's name upon them; following Evan8 v. Van Laer, ante, 1 5 3 . . .
2.
SAME-USE OF OLD BOTTLES.
This was a bill in equity to defendant from infringing rights in the nature of a trade-mark, and to prevent unfair competition in business, and was heard upon a motion for a preliminary injunction. The facts appearing by the pleadings and affidavits were substantially as follows: About 1864 HenrySl!owyercommenced the manufacture of bluing in, the city of Boston, Massachusetts, and succeeded in establishing a large and remunerative which was carried on by him until 1880, when he transferred it, with all its assets, including its trade-marks and good-will, to the plaintiff" B.. corporation orgaBized under the laws of Maine, but having its principal place of business at Boston. Sawyer became the president of the company, and is a large stockholder. ,Among the bluings manufactl,lred by Sawyer, and afterwards by the plaintiff, is an article known as "Liquid Bluing," which since 1868 or 1869 has had a large sale, and haa been put up continuously in a special style of package of the following description: A bottle of light green color, having a flat body with rounded shoulders, and a neck about an inch terminating in a rim, or lip" upon one side of which is blown or moulqed in three lines, in large letters, the words, "Sawyer's Crystal Bluing." On top of the bottle is a bright melx'l1lic cap of tin extending down over about half the rim at the mouth of the bottle, and in the cap az;esix perforations. On the side of the bottle opposite the words" Sawyer's Crystal Bluing" is a largeovallabel, partly in white and partly in red and blue, with the words "Sawyer's Crystal Blue," "H. Sawyer, Boston, Mass. Copyright :;;ecured,J'together with "Directions" for using. The defendant was formerly in Sawyer's employ, but has for some time manufactured and sold liquid bluing in Boston on his own account. The package used by defendant, which the plaintiff sought to restrain, consists of a bottle of the same size and. [Ibape as that used by plaintiff, with a bright metallic top of the same character. The labels on the bottles used by defendant are octagonal in shape, and are red, with the words "Hubbard's Concentrated Chinese Blue. Hubbard & Co., BOf;ton," in white letters. Some of the labels used by him had a blue ground. So far as regards the labels themselves, there was no similarity between the plaintiff's and defendant's packages. Some of the bottles
HILL v. LOCKWOOD.
389
used by defendantwere old bottles of the. plaintiff, with the words "Sawyer's Crystal Bluing" moulded or blown on one side. The defendant contended that the shape of. bottle used by plaintiff was the one used generally for putting up liquid bluing, and that it was his custom to buy old bluing bottles indiscriminately. . Rowland 0Jx and Warren« Brandeis, for plaintiff. F. D. Ely, for defendant. COLT, J. Upon the papers submitted to me on this motion for a preliminary injunction, I am satisfied that the defendant should be restrained from using bottles having complainant's name upon them, (see ./J)vans v. VanLaer, ante, 153,) and from using the bright metallic top 0ll a bottle of the shape and appearance used by complainant. It seems to me that these things are calculated to deceive the public into buying the defendant's bluing for the complainant's, and that they are made use of by the defendant for this purpose. An injunction to this extent may be granted.
HILL v. LoCKWOOD and others. (Oircuit OQurt,E. D. Wisconsin. June 24, 1887.) TRADE-HARK-CONTRACT FOR ROYALTIES-BREACH.
By the terms of a written contract between the plaintiff and the defendant, in which it was stated that it was for the mutual interest of both parties thereto that the defendant should have the sale of certain mineral water, known as "Clysmic Water," taken from plaintiff's spring of the same name, for the purpose of increasing the sale thereof, it was agreed that, in consid· eration of the payment of a certain royalty. the defendant should have, fora long term of years, the exclusive sale of such waters in the United States and foreign countries. Held that, during the life of the contract, the defendant had no right to sell other mineral waters, under the same name, in competition with the waters of plaintiff's spring, nl\twithstanding the fact that he had himself given the name to the waters before plaintiff acquired title to the spring.
Jenkins, Winkler, Fish « Smith, for complainant. Finche8, Lynde « Miller, for defendants. DYER, J. T.he material facts upon which the decision in this case turns are, in the main, undisputed. The complainant's bill is for an injunction and accounting, and for the cancellation of a contract. It appearS"'that on the thirty-first day of May, 1878, Samuel W. Warner and Alice E. Showerman were the owners of a lot in the village of 'Vaukesha, upon which there was a spring of mineral water, valuable for its medicinal quality, and for table use. The owners of the spring, and the defendant Lockwood, on the day mel)rtioned, entered into a contract, by which Lockwood acquired the exclusive right to sell the water supplied by.the spring in the New England and Middle states, Maryland, and
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