A. Bauer & Co. v. Siegert

120 F. 81 | 7th Cir. | 1903

JENKINS, Circuit Judge

(after stating the facts as above). This is to us a plain case. The dress employed by the appellant, the character and color of the bottle, the character and color of the neck label, the character, color, and arrangement of letterpress on the body label, and the unusual covering of the bottom of the bottle with the label, renders it clear that the appellant sought to, and did, palm its goods as those of the appellees. If confirmation were needed, it is found in the use by the appellant of the bottles which had contained the bitters of the appellees. We cannot credit the assertion of the appellant that the use of the old bottles upon which was blown the name “Dr. J. G. B. Siegert & Hijos” was inadvertent. The resemblances in every feature of the dress are too marked to permit us to place faith in the statement. The design is so evident that it challenges belief in the assertion of ignorance or inadvertence. It is not necessary to consume time upon so flagrant an imitation and so manifest a design.

It is alleged that the word “Angostura” is not the subject of a trade-mark or a trade-name. We cannot sustain the contention. For upwards of half a century no town has existed by that name; and, even if the old town of Angostura were still known by that name, the appellant would not be permitted by fraudulent imitation to deceive the public and wrong the appellees by palming off its goods as their goods. The bitters of the appellant are made in the city of Chicago. The name “Angostura Bitters” had acquired, long before the appellant commenced the manufacture of its goods, a world-wide celebrity. The appellant cannot be permitted to usurp that name, and dress its goods like those of the appellees, and thereby defraud the public. Pillsbury v. Flour Mills Co., 64 Fed. 841, 12 C. C. A. 432; Flour Mills Co. v. Eagle, 86 Fed. 608, 30 C. C. A. 386, 41 L. R. A. 162; Siegert v. Findlater, 7 Ch. Div. 801.

The objection that the product of the appellees is not shown to have medicinal properties, and that they were guilty of fraud in publishing to the world that it has medicinal properties, and that therefore they can have no standing in a court of equity, cannot be sustained. No such fraud is charged in the answer, and no such fraud is proven. It is not to be presumed, to enable the appellant to perpetrate its own fraud.

The decree is affirmed.