It would be unwise to say more at this time than is necessary to explain the action оf the court in disposing of the interlocutory motion now before it. The plaintiff’s exclusive right to the trade-mark, as a designation of his smoking tobacco, is not doubted.
The defence rests upon a denial — -first, that the defendant has used the trade-mark; and, second, that he has used it as a designation of “smoking tobacco.” The second branch may, most conveniently, be noticed first. While the revenue laws, for purposes of tаxation, distinguished between smoking tobacco and cigarettes, there is, -we believe, no substantial difference. Cigarettes consists of smoking tobacco, similar in all material respects to that used in pipes. The circumstance that a lоnger “cut” than that commonly used in pipes is most convenient for cigarettes is nоt important, nor that the tobacco is smoked in paper instead of piрes. It may all be used for either purpose, and is all embraced in the term “smoking tоbacco.”
We do not believe the public or the trade draw such a distinctiоn as the defendant sets up. We have not overlooked the statements cоntained in-his affidavits, but the method pursued in obtaining this testimony, generally, does not recommend it to our confidence. The affidavits seem to have been prepared without seeing the witnesses, and sent over the country to be signed by those who might be found willing to sign them. They are, generally, similar in language,- and printed. This method' of obtaining testimоny is not worthy of encouragement. If the public and trade draw such a distinction, and, thеrefore, do not suppose the defendant’s cigarettes to be made of the plaintiff’s tobacco, (and the defendant
The dominating charаcteristic of the plaintiffs trade-mark is the name “Lone Jack.” His tobacco has сome to be known and described by this name, throughout the country, to such an extent that the accompanying device has ceased to be important, if it evеr was so, — doubtless rarely observed, and slightly remembered. At home and abroad, to the trade and the public, it is familiarly known as “.Lone Jack,” and is thus designated as the plаintiff’s manufacture by purchasers and sellers.
The defendant’s application of this name to his smoking tobacco is an adoption and use of the essential рart of the plaintiff’s trade-mark. Surrounding it with a different device signifies nothing to the public, who attach no importance to the device of the plaintiff. The defendаnt’s name upon the cigarettes, if recognized, (and it would not be without close insрection,) would not inform the public that the tobacco is not of the plaintiff’s manufacture. That the defendant’s act is calculated to mislead can hardly bе doubted; that it has misled, the plaintiff’s affidavits, we think, show; and the inference that the defеndant supposed it would mislead, and intended it should, cannot well be avoided. Why otherwise did he adopt this particular name? He knew it to be the recognized designаtion of the plaintiff’s tobacco, which had become popular with cоnsumers and the trade. Did he not expect the public to be influenced thereby аnd his business increased ? An affirmative answer cannot well be avoided. If he did not, however, the injunction will do him no harm, for he has not yet had time to establish a reputation of his own under this name.
Whether the plaintiff commenced putting up his tobacco in the form of cigarettes before the defendant applied the designation “Lone Jack” to his cigarettes need not be considered at this time.
The law involved is, we believe, well settled, and is so fully stated in every aspect suggested by the learned counsel for the defendant in McLane v. Fleming,
A preliminary injunction as prayed for will be granted.
An injunction was subsequently issued restraining respondent, until the further order of the cоurt, from selling cigarettes or smoking tobacco in any form bearing the trade-mark “Lone Jack.”
Note. — See Sawyer v. Horn, ante, 24.