BEADLESTON &. WOERZ V. COOKE BREWIl'\G CO.
229
8 C. C. A. 362, 5n Fed. nOG; Fleischmann v. Starkey, 25 Fed. 127; Filley
v. Child. 16 Blatchf. 376, Fed. Cas. No. 4,787; Goodyear's India Rubber Glove Manuf'g Co. v. Goodyear Rubber Co.. 128 U. S. 59S, 9 Sup. Ct. 166; Browne, Trade-Marks, §§ 2G\)-272; Fairbanks v. Jacobus, 14 Blatchf. 337, Fed. Cas. No. 4,G08; Moorman v. Hoge, 2 Sawy. 78, Fed. Cas. No. 9,783; Adams v. Heisel, 31 Fed. 27!J; Davis v. Davis, 27 Fed. 4GO.
Rowland Cox and B. Lewinson, for appellee, cited authorities as follows: Manufacturing Co. v, Trainer, 101 U. S. 63; Taendstieksfabriks Aktiebolaget Vulcan v. 1I1yers (Sup.) 11 N. Y. Supp. 6G3; Fischer v. Blank, 138 N. Yo 251, 33 N. E. 10'10; Franks v. Weaver, 10 Beay. 2D7; :Manufacturing Co. v. Spear, 2 Sandf. 5D!J; Colman v. Crump, 70 N. Y. 573; Lawrence l\1anuf'g Co. v. Tennessee :Manuf"g Co., 138 U. S. 537, 11 Sup. Ct. 396; Rothstein v. Zechnowitz. Beekman, J., 14 N. Y. Law J. n98; Hennessy v. 'Vhite, 4 Viet. Law R. Eq. 123; Cox, Manual Trad",-Mark Cas. p. 378; Hostetter Y. Adams, 10 Fed. 838; Le Page CO. Y. Russia Cement Co., 2 C. C. A. 555. 51 Fed. 943; Chemical Co. v. Meyer, 13D U. S. 544. 11 Sup. Ct. 625; Manufacturing Co. v. Read. 47 Fed. 7lG; Coats v. Thread Co., HI) U. S. 5GG, 13 Sup. Ct. 966; Von l\fumm v. Frash, G6 Fed. 837; Reddaway v. Hemp-Spinning Co. [1892] 2 Q. B. 640; Association v. Piza, 24 Fed. 14!J; Gilman v. Hunnewell, 122 Mass. 139; Manufacturing Co. v. Simpson, 54 Conn. 5-15, 9 At!. 395; Singer Co. v. Loog, 8 App. Cas. 18; Celluloid I11anuf'g CO. Y. Cellonite Manuf'g Co., 32 Fed. 97; It. W. Hogen; CQ. v. 'Vm. Regers Manllf'g Co., 17 C. C. A. 576, 70 l!'ed. 1017; Pillsbury v. Mills Co., 12 C. C. A. 432. G4 Fe<l. 841; Read v. Richardson, 45 Law T. (N. S.) ;'4; Brown v. Mercer, 37 N. Y. Super. Ct. 265; Ewing v. Johnston, 14 Ch. Div. 4c14; Lever v. Goodwin, gG Ch. Div. 1; De Long v. De Long Hook & Eye Co., HU Hun, 402, 33 N. Y. Supp. 509.
The case, haTing been argued before WALLACE and Circuit Judges, was taken under advisement, and a decision announced aftirming the order of the court below, as follows: PER CURIAM. circuit judge. Order of circuit court affirmed, on opinion of
BEADLESTON & WOERZ v. COOKE BREWING CO. (Circuit Court of Appeals, Seventh Circuit. May 4, 18Uti.) No. 285.
1.
TRADE-J',IARKS-DESfGNATION OF
The word "imperial" is so far a designation of quality as to be Incapable of adoption as· a trade-mark for beer. Showalter, Circuit Judge, dissenting. OF ORTGTK.
I.
Plaintiffs, who were brewers, lll:l<le for several years 8 kind of beer, to which they gave the name "Kulmbacher," and afterwnrds two other grades ot beer, to one of which they gave the name "Imperial." All their paekages bore their own name, the coat of arms of the state of New York, where plaintiffs' business wns conducted, and the name "Empire Brewery," to wbich was added, in the case of eacb special kind of beer, its particular name. On the bottles of Imperial beer, designed for export, this name was placed on the label, with plaintiffs' name, and the coat of arms and name "Empire Brewery" were printed in the corner of the label, with the words "'.rl'ade-:Ylark." Held, that plaintiffs had not adopted the word "imperial" as a mark of origin or ownership, and were not entitled to protection in its use as a trade-mark.
Appeal from the Circuit Court of the United States for the North· ern District of Illinois.
200
74
FEDERAL REPORTl"R.
The appellant, Beaclleston & Woerz, a corporation existing under the laws <{)f the state of New York, filed its bill In the court below for an injunction to restrain the appellee, the. Cooke Brewing Company, a corporation of thl! state of Illinois, from the. use of the word "imperial," claimed by the appellant as its trade-mark when applied to beer. Prior to the year 1889, the brewing business now conducted by the appellant in the state of New York bad for many years been conducted by the firm of Beadleston & Woerz. The brewery was known as the "Empire Brewery." The appellant, the corporation, in that year succeeded to and bas since conducted the business. 1)rior to June, 1885, Beadleston & Woerz brewed several grades of beer, the lJest quality of which was designated as "Kulmbacher." On the 30th of June, 1885, the firm purchased of the receiver of a defunct corporation, which had been engaged in the manufacture and sale of beer, the supposed title to the word "imperial" as a trade-mark when applied to beer, its use having been abandoned by such corporation. Thereafter Beadleston & Woerz and the appellant, as their successor, brewed and sold several qualities or grades of beer, the "Kulmbacher," the "Imperial," and a grade of beer of poorer quality. The 'fir:m and the corporation used as a trade-mark the coat of arms of the state Of New York in connection with the name Beadleston & 'Woerz, the words "Empire Brewery" surmounting the coat of arms. '.rhere was also added the' particular name of the beer to which the trade-mark was attached. In the case of beer sold in bulk, the name and general trade-mark were burned into the keg- or barrel containing the beer, and a label pasted upon the keg or barrel, with the word "Imperial" printed thereon in red lettering, in case the keg or barrel contained beer of that grade. Afterwards they bottled their Imperial beer for the export trade, and placed upon the bottle a label bearing the name "Belldleston & Woerz, Imperial Beer, Brewed Especially for Export." In the, lower left-hand corner of the label appeared the coat of arms of the state of New Yorl" surmounted by the words ,"Empire Brewery," and underneath it the words "Bottling Departmeut, lS'ew York." At the left-hand side of the coat of arms was the word "Trade," and on the right-hand side "Mark." Other devices came In use with SUbstantially the same marks aflixed, differing mainly in the color of the label. The appellee, the Cooke Brewing Company, is the proprietor 01' a brewery in the city of Chicago, established in the year 1887, and since tbe year 1802 has brewed and sold In bottles beer of three grades or qualities, the most expensive being called "Munich Hofbrau," next the "Imperial," differing In color and Its manufacture from the otber, less expensive to make, but said to be of equal quality, and a lower grade of beer called "Pilsener," and also an annual brew of "Bock" beer. The label used upon the bottles bad printed thereon the words "Cooke's Imperial Beer," In red lettering, and "Chicago, U. S. A., Bottled at the Brewery's own Bottling Works" in black lettering, and Its trade-mark consisting of a shield of stars and stripes,with the monogram "C" and a crowing cock printed thereon In red. The sales of the appellant, Beadleston & vVoerz, are largely in the eastern and southern states and to the for:elgn trade, although to some slight extent they sell in the centraland western states. The sales of the appellee are mainly confined to the central and western states.
L. C. Raegener, for appellant. J. E. Deakin and Richard Prendergast, for appellee. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges. JENKINS, Circuit Judge, after the foregoing statement of the case, delivered the opinion of the court. This case in no wise falls within the ruling in Pillsbury v. Pillsbury-Washburn Flour Mills Co., 24 U. S. App. 395, 12 C. C. A.432, 64 Fed. 841. There is here, neither in design nor in fact, a palming off upon the public of the goods of one as those of another. The labels are wholly dissimilar, with the exception of the use of the word "imperial." The parties did not oeeuilY the same market with