126 F. 573 | U.S. Circuit Court for the District of Western Pennsylvania | 1903
This is a bill brought by the Bickmore Gall Cure Company against the Karns Manufacturing
The sanie remarks apply to the second trade-mark in question, viz., No. 28,282, registered May 19, 1896. This consists of a representation of the same horse accompanied by the words “Gall Cure.” The alleged violation thereof consists in the use of the words “Four Horse Gall Cure for Horses and Cattle,” accompanied by the representation above described of four horses, and other marks of alleged similarity. The term. “Gall Cure” is one descriptive of a medicine, and, standing alone, could not be monopolized as a trade-mark. Nor is it so claimed here, for the statement of registration is that the essential features are the words “Gall Cure” and “the representation of the horse.” Now, as we have seen, the respondent has not appropriated, either in likeness or substantial likeness, the representation of the horse in question. It has emphasized the difference both in the number employed and in the name of its remedy. We are therefore of opinion no violation of such trade-mark is shown.
The third and last one is No. 21,456, granted July 19, 1892. This is for the words, “Be Sure and Work the Horse,” in connection with the representation of the same horse: Now, the proofs of both sides establish the fact that the remedy of both parties is more effective if the horse to which it is applied is kept at work. Galls usually form under some p'art of the harness, and if the cure is applied the increased temperature arising from working the horse and the friction
The question of unfair competition still remains. This is alleged to consist in the respondent making a salve of substantially the same appearance as the complainant; using a box, wrapper, and carton of similar appearance; dressing the box in the same general manner, and’ especially in using the catch phrase, “Be Sure and Work the Horse.” We have carefully examined the proofs, and have reached the conclusion that the complainant has not shown such a state of facts as warrant a decree. The complainant had built up a large trade in its salve, and the respondent, Karns, a traveling salesman for another horse medicine, was familiar with the complainant’s remedy and its general use. We have no doubt that his originally contemplated purpose was to use the phraseology of commendation and description long used by complainant. Before, however, he had put any of his goods on the market, his initial circulars called forth a protest from, the complainant. Thereupon he consulted counsel, and changed his wording, and, while there are still points of resemblance, we are of opinion that such resemblance may fairly be attributed to the fact "that both parties sell remedies of the same kind, and intended to accomplish the same result. Between the cartons, in which a dozen of the boxes are packed, there is no resemblance, save in one or two respects — the boxes are the same size, and on the four sides complainant has his trade-mark and this phrase, “Be Sure and Work the Horse,” while the respondent has on two ends “Four Horse Gall Cure,” and on the sides the phrase, “Always Work the Horse.” Complainant’s carton is of a bright straw, while respondent’s is a salmon color. The tops of 'the boxes are distinctly different. The name “Four Horse Gall Cure” is printed in large type, instead of “Bickmore’s Gall Cure” as on complainant’s carton. Respondent has a large-sized picture of four driven horses, while complainant has the one horse of its trade-mark. Respondent’s box states the salve is manufactured by the Karns Manufacturing Company, Franklin, Pa., while complainant states that its is made by the Bickmore Gall