.MYERS'll. THELLER.
607
made in relation to this little device. But many patents have been. and probably more will. be, granted. '" '" '" It Is obvious from the foregoing review of prior patents that the invention of Bristol, if his snap-book contains' a patentable invention, is but one in a series of fmprovements all nR.ving the same general object. and purpoae; and that in construing the claims of his patent theymust be restricted to the precise form and arrangement of parts described in his speciflcation, and to the purpose indicated therein."
that infringement of No. 303j596, at least, is by no means free from doubt. There is little room for monopoly in this art. The language of Mr. Justice BRADLEY in Bragg \1. Fitch, 121 U. S. 478,7 Sup. Ct. Rep. 978, seems· peculiarly applicable. In dealing with a somewhat similar structure he says: "One would bardly suppose toot a patentable invention could have been
. See, also, Fuller v. Yenizer, 94 U. S. 288; Sharpy. RieB8ner, 119 U. S. 631,7 Sup; Ct. Rep. 417; McCormick v. Talcott, 20 How. 402; Burr v. DUryee, 1 Wall. 531jRailway Co. v. Sayles, 97 U. S. 564. The bill is dismissed.
MYERS
'D.
THELLER et aZ.
(lJirc1tit OO'U'I't, 8. D.New YO'I'k. May '1,1889.)
Defendants use a bottle for bitters which has the peculiar form, color, round shoulders, and short neck of complainants' bottle, with a label containing the words " Theller's. Celebrated Stomach Bitters,"a monogram of the letters" A. T." in place of the picture of St. George and the dragon, used by complainants, a black shield below the monogram greatly resembling complainants"shield, and below the shield an imitation of the lettering upon the genuine label. HeUJ" all ,imitation well and designedly calculated to deceive. ' The fact that one of the defendants was in 1870 engaged in manufactUring imitations ·of the goods, labels, and trade-marks now manufactnred and owned. bY,col)lplainants, al).d was thensuccessfullr sued therefor, is immaterial, and the record of that suit, which was offered only for the purpose of shOWing that fact, is excluded. .
.. SAME-EVIDENCE-FORMER SUIT.
In Equity. BiB. to enjoin infringement of trade-mark, etc. A. H. ,Clarke and Jame8 Watson, for complainanta. MeYer Auerbach, for defendants. . SHIPMAN, J.; The bill alleges that the complainants, H6stetter and Myers, are partners doing: bu.siness at Pittsburgh; Fa., under the firm name of Hostetter &00., ahd are engaged in the manufacture and sale ofamedic8.l bompound known as "Hostetter's Stotnaoh Bitters," and very extensively dealt in throughou.t the United S·tates and, other countries. That prior' tetbe formation oltheir partnership said Hostetter's' StomaehBitterS1tiWe'lie made and. sold by said David HostetterandGeorge W. Hostetter. & Smith, at said; .pfttsbullgh, :for about 30
as
60.S
:REPO:R'.l'E:R,
vol. 38.
years continuously. That said David HQstetteJ,'!, about 1852, originated a peculiar form of bottle,with round shoulders and short neck, and well ad':1pted to thepartioular manner of putting up, packing, and shipping said bitters. That said !l Hostetter's Stomach Bitters" were by said Hostetter & Smith manufactured with great care and skill, and are stiU so manufactured by the complainantsjand that, owing to their excellence, they have acquired a wide reputation as a valuable medicinal compound. That they have expended large sums of money in acquiring the Tight to the exclusive use of the trade-ri1arks, stock, and good-will which formerly belonged to said Hostetter & Smith. That the mannerin which said "Hostetter's Stomach Bitters" have been by their predecessors, and still are by them, put up and sold is as follows: The bitters, when manufactured, are put into said bottles, which are square, of uniform size aIld color. Labels are pasted upon the reverse sides of said bottles! One label consists of the pictorial representation .of St. George and the dragon, and the symbol of a black shield, which appear in the. center below the words "Hostetter's Celebrated Stomach Bitters," and above a tiny note of hand for one cent, signed "Hostetter & Co." It contains other words and letters, all being surrounded by a double embossed border. The label for the reverse side is printed in gold or gilt letters, containing directions for the use of the bitters, etc. That the said defendants Arnold and Cornell Theller, partners as A. TheIler & Sonj Henry H. Thomas" and Paul J. Felix and PatrickH. Cody, partners as Felix & Cody,-combined and confederated together to defraud the complainants. That they are engaged in a scheme to put upon thetnarket I;Uld palm off upon the public a preparation Of their own, which is actually sold as and for the complainants', not only in bulk, but in botties. That the bitters made and sold by resemble the complainants' bitters in color, taste, and smell, to mislead and decElive purchasers and consumers. That said imitation bitters are compounded by the defendants Arnold Theller and Cornell TheIler in New York city. That they place the same in bottles resembling complainants' bottles to an extent well calculated and intended to mislead and deceive the un,wary, and which do so mislead and deceive. That they also ipurchase the empty bottles once used by complainants, and refill the same with said imitation bitters, and cause them to be palmed off as and for the genuine bitters of the complainants, and having the original labels and trade-marks thereon. That they also sell and cause to be sold or delivered by the defendant Thomas said imitation bitters in bulk, by the gallon, in jugs, and demijohns, marking the same Bitters." That said defendant Thomas fU1:nishes said imitation bitters to defendants Felix & Cody, who place the same in said bottles which once. contained the genuine bitters of your orators;· and that said Feli:lt & Oody sell theBame as and for the genuine, asserting that the said imitation are not an imitation, but are the genuine bitters of the complainlltlts, when they well know that the same are made bysaid TheUer &Son; and ,that said TheIler"& Son and said Thomas supply many others with said iJX)itation bitters ill bulk and ill bottles,both the genuine bottles of the complain-
MY,ERS". THELLER.
609
nnts and bottles resembling to Iln extent calculated.to·mislead and deceive,and which do mislead and deceive purchasers and consumers. The prayer is foran injunction fl,gainst mll,king or selling an article of bitters in imitation or purporting to be Hostetter's ,bitters, or reselllbling the same in color, taste, and smell; or with using the qame "Hostetter's" in connection with bitters not made by the compillinants; and from making use of the cmnplainants' empty bottles by placing therein an article of bitters not made by them; and from selling or offering for sale an article of bitters in bottles resembling the complainants' bottles, to an extent calculated to deceive; and from using anylabel or trade-mark which resembles the complainant's label or trade-markto an e:lrtent calculated to deceive, or which does deceive, and under whi,ch de.:, fendant's bitters are sold as and for the complainants; and for furtht;lr relief. Thomas and Felix & Cody permitted the .bill to be taken .lIro , confe88o. David Hostetter died after the bill was filed. The Thellers took no testimony. ' The averments of the bill the long-continued manufacture by Hostetter & Co. and their predecessors of "Hostetter's Stomach Bitters," its popularity, wide reputation, and extensive sale, the character and continued use by the firm of lIostetter & Co. and their predecessors of the described tr!\de-marks, and the ownership of the are true. The peculiar form and amber color of the bottles, and the peculiar appearance, character, and features pf the labels, which have been uniformly used upon the bottles are well known as designating the article which 1S manufactured by the. cOmplainanta, and as giving. notice who were theproducers,and the article .has a reputation derived from the care or skill of the manufacturers. The trade-mark is one of large pecuniary It was registered three times 10, the patent-office in the name of some one of the complainll,nts' predecessor$, an,d in 1SS'S in the name of the complainants. The bill alleges a fraudu-, lent and unlawful use of the trade-mark by the defendants, or some.of them, in three ways: (1) By the combination of all of them to palm off upon the public as Hostetter's 1)itters, by means of the fraudulen.t use of the plaintiffs' trade-marks, ,an imitation article compounded .by the Thellers, which is sold or delivered by said Thomas to said Felix & Cody, who place same in genuine Hostc::tter bottles, and sell tJ;1e same as and for genuine Hostetter bitters, knowing that it is made by the said Thellers; (2) by the acts of the said Thellers in placing their imitation article in empty, genuine bottles, and selling the same as a genuine article; and (3) by the acts of the said Thellers in placing their imitation article in labeled bottles which resemble and imitate the com· plainants' labeled bottles, and are intended to deceive purchasers, and which do so deceive. There is abundant proof that the TheUers bave been wont to sell an imitation article, by the gallpn, to Thomas, who is a peddler of bitters among retail liquor dealers in the city of New York; ,hat he has furnished the same article, by the quantity, to Felix. & Oody t who placed it in genuine bottles, and sold it as Hostetter bitknowing that it was an imitation article. There is no evidence v.38F.no.7-39 '
FEDERAL REPORTER,
that the Thellere knew that it was being furnished to Felix & Cody, and no adequate evidence that they w.are combining with Thomas to cause the article to be pllicep by any one in genuine· Hostetter bottles. ' They s61d it 'to him iIi bulk, and probably believed that the saloon-keeper would sell it as genuine; but there is DO adequate proof that it was delivered to Thomas for that known 'and prearranged purpose. The alleged conspiracy between them and' Thomas and Felix & Cody is not proved. ' There is no evidence' of ,actual sales by the Thellers, or of actual possession by them for sale or use, of imitation bitters put up in genuinEJHostetter botties. They deny in their sworn answer the use by them ,01 an.y bottles theretofore used by ,the complliinants. The hearsay testiriionywhich Thomas' and Pathenheill1 ers'declarations,'and which 'olJjeeted to', is inadmis$ible. A person who ,acted for the' time, being a/3 it detective, testifIed :that Cornell TheIler, when he was clerK for h1s father, Arnold Thenar, and in the business of such agency, and in,a transaction then depending, in reply to a business inquiry re-' specting the purchase of Hostetter bitters s!\.id that his father was accustomed to sell bittera in Hostetter's bottles as .genuine Hostetter's bitat present, ;but told the 'inquirer to ters, but that they did not sandin later. At ll:*other time, it is'testified that he told an employe ' of the complainant,s whO was also acting as a detective, ,that he eCorneIl) could sel} , him an' imitation Of Hostetter'sbittArs, but that the only: way in which it could be !:lold to simulate the genuine article was to put itbi genuitiebottles;aiid' he, bad' no bottles at that time. At another time it ,is testified that hesa:idl,tinhesame witness that he was not then selling· the' genuii;lebotHes, thonghhEl JIlight have some at some future time. " In view' of the absenc,e' of 'proof ofactui11 sales 'in Hostetter' b,otUes br l of the pt>ssession Of Hostetter bottles, of the denial in the c;>f genuine' bottles, and of my lack of confidence in the accuracy of the report of the nrst conversfJ.tioD, for I do not think' that COrneIl'l'helli:!r would be likely to make to a stranger such a bald disclosure tif his father's character as a. counterfeiter, I am of opinion that the' alleged sale by the "Tllellers of their spurious article in genuine Rostetter's bottles is not adequatelr proved. .i The thjrd question of fact in regard to the Thellers' imitation 6f complainfJ.nts' trade-mark. Arnold TheIler told a witness that he as "TheIler's Stomach Bitters," in bothad an article' oihis tles of the same size and general cnaracter as the Hostetter bottles; that it could he, disposedpf as 1l0stettM'sbitters.A bottle of bitters is produced in evidence, whiGh has the peculiar form, Golor, round shoulders, and short neck of the ;Hostetter bottle, having a label containing the words "Theller's Celebrated Stomach Bitters," a' monogram of the letters" A. T." in place of the l#tlite of St. George and the dragon, a black shield belOw thEi monogram,' which greatly resembles the, complainants' shield; and below the shield an imitation of the appearance 0(' the tiny lettering upon the genuine label. A former employe of Arnold TheIler, though,/!. very lll'lwilling witness, testified enough to show that TheIler's bitte'rs 'were bottled in these bottles thus labeled. The
shape and color of the bottle, the shield,illnd !tppel\rlj:l1.cl;fiof the label, are well and designedly adapted to deceive the ordinary pur. ordinary courseofpurchasillg in a sllil!ll qp,an· tit)'1 for immediate use. ,',{'he general effect ·is to mlilke suppose that hl:lis drawing his supply from a I,Iostlltter bottle, while SOllie of the details, of the label differ thC\se, of the genuine Jabel. If the oral admission of Theller was not in the case, it would be difficult: to conceive why the peculiar the shield anq of the label were used, unless the object was to imitate the trade-mark, and so deceive the pqrchaser, while at :the same purchaser is enabled upon, careful inspection of the bottle to see that it I is an imitation of ,the genuine article. From the admission of Th,elIet;;, it is obvious ,that his purpose was to deceive, thep1,lhlic, and the m0p.y shows that the resem1;>lance was adequate to accomplish the pose. The exoeptions takell to the testimony at folios 45,137 ,145, 14;7, and 364 are sustained. The record and decree, dated lSn, in the case of Hostetter & Smith against Arnold ThelIer and others,ill the circuit court of the United States for the district of Nebraska, Were offered only for the purposes named in fqlio ,257, are, (lxc!udf¥!, upoIl' the ground that the fact that4rnold Theiler was engaged in 1870 in manufacturing imitations of the goods, labels, and tm<l.e-marks now manufactured and pwned by the complainants, and was succes\lfulIy sued therefor, is not material to, the issues in this case. .Let there be a dec;ree which shall enjoin Arnold ThelIer and Cornell ThelIer against the use, of any labels or trade-marks made in colorable and deceptive imitation of the labels and, trade-marks of the complainants" and from' the use .of any bottles made in imitation of the bottles made or, used, by the complainants to which shall be attached labels or trade-tnarks made in colorable and deceptive imitation of the labels and of the plainants.
THE HENRY BuCK. STOKES'll.
THE HENRY BUCK.
(DilJtrtct Oourt.. D., South, Uarolina. April 9. 1889.) TOW.GE-NEGLIGENCE-RAFTS.
, A tug which undertakes to a raIt to a certain and whIch ,leave. it before it arrives there. without Ilscertaining whether the raft is made fast or not, and without giving any order in relation theret\), is negligent, and ia .. " responsible where the raft is carried away by the tide,an.d wind.,
.
In Admiralty. Libel by W. E. Stokes against the ages for negligence in tow.ing a raft. J·. P·. K.· Brya,'(/,'J' for libe1llillt.
. Henry· Buck,(!or
4am·,