103 Ga. 784 | Ga. | 1898
It appears from the record, that in'the year 1889 the S. T. Coleman & Burden Company of Macon, Ga., a corporation dealing in shoes, adopted as a trade-mark for its shoes the words “Old Colony Shoe Company, Rockland, Mass.” They sold shoes bearing this trade-mark up to the year 1893, when the company was dissolved. Subsequently a corporation by the name of the Coleman, Burden & Warthen Co.- was incorporated to do a shoe business in Atlanta, Ga. This latter company purchased the trade-mark as one of the assets of the former company. In 1894 and prior to that time, the Dannenberg Co., of Macon, Ga., were selling shoes bearing this trade-mark. Ascertaining this fact, the Coleman, Burden & Warthen Co. demanded of the Dannenberg Co. that it desist from using the trade-mark. This demand was refused, and the Coleman, Burden & Warthen Co. thereupon filed am equitable petition, seeking to enjoin the Dannenberg Co. from the use of the trade-mark, and to recover damages which it had sustained by reason of such use. Upon the trial of the case it appeared from the evidence that, at the time this trademark was adopted in 1889, Rockland, Massachusetts, had a reputation for making fine shoes; that the shoes upon which this trade-mark was placed were not made in Rockland; they were not manufactured by the “Old Colony Shoe Co., Rock-land, Mass.” (there being in fact no such company in existence), but by the Commonwealth Shoe & Leather Co., of Boston, Mass. The pleadings and the petitioner’s evidence having shown these facts and others unnecessary here to mention, the court below
We have carefully considered the record, and are satisfied that the court did not err in dismissing the action. It is a well-recognized principle of equitable jurisprudence, that he who comes into equity must come with clean hands. No person is entitled to equitable relief in a case where it is shown that his action is founded upon a matter in which his conduct is deceiving or is calculated to deceive the public. On the subject of trade-marks, the rule as to misrepresentations by the plaintiff seems to be well settled. In so far as it relates to misrepresentation as to the place of manufacture, it is announced in 26 Am. & Eng. Enc. L. 462, as follows: “It has been decided in a number of cases, that' a false statement with reference to the origin of an article . . is such deceit as will disentitle the plaintiff to relief against infringement. So, also, with reference to the place of manufacture; if an article is made in one place, but claimed to be derived from another, such a statement will' deprive the plaintiff of relief. Thus, where the plaintiff had resided at one place, but subsequently moved his factory to another near by, but failed to state upon his label that he had made the change, or that he was manufacturing at the new place, relief was denied him.” In the case of Joseph v. Macowsky, 96 Cal. 518, it was held that “A person who comes into a court of equity for an injunction in a case of this kind must come with clean hands; he can not be granted relief upon a claim to the exclusive use of a trade-mark which contains a false representation, calculated to deceive the public as to the manufacturer of the article and the place where it is manufactured.” In Ex parte Farnum & Co., 18 Pat. Off. Gaz. 412, Marble, Com’r, said: “Were I to admit the word ‘Lancaster’ to be an essential feature of the mark, the case would then be open to the further objection that the use of such word would convey a false impression to the public — viz.: that the goods were manufactured in Lancaster, when in fact they were made in Philadelphia. . . Words calculated to deceive the public as to the place of manufacture should not be allowed registration.” In the case of Plobbs v. Francais, 19 How. Pr.
Judgment affirmed.