73 F. 203 | U.S. Circuit Court for the District of Southern New York | 1896
The Hannis Distilling Company has for many years manufactured a rye whiskey, which it sells ax wholesale in barrels under the name of ‘-Mount Vernon Pure Rye Whiskey.” The brand lias long been well known and popular. Dealers in whiskey have; been accustomed lo buy this variety in barrels, and, after bottling it themselves, offer it to (lie trade in the smaller package under the* name of ‘‘Mount Vernon.'’ The purchaser’s assurance (hat the whiskey in the bottles is pun; Mount Vernon, unaltered by rectification or otherwise, of course depends upon the reputation and character of the individual bottlin’. Complainant is the successor of the Ann of Cook & idcrnheiiner. That firm, in 1880, entered into a contract with the Hannis Distilling Company whereby said Arm and its successors became possessed of the exclusive rigid of bottling Mount Vernon whiskey at the distillery of the company. Tlu; importance of this concession lies in the fad; that under the provisions of sections 3280, 3244, 3456, Rev. St. U. S., no one
MOUNT VERNON PURE RYE WHISKEY,
Bottled at the Distillery and Purity Guaranteed by the HANNIS DISTILLING CO.
Bottled for Export. Copyright 1890, by Hannis Distilling Co.
On the rear of the bottle appears the following label:
I certify that to this bottle, after being filled, corked, and capped in the warehouse of the Mount Vernon Distillery, Baltimore, Md., was attached this numbered label. H. W. WHITE.
Series A, No. 635,195, Sup’t. Mt. Vernon Dist.
The capsule of this bottle is wired and sealed and cork-branded. The absence of this protection is evidence that the contents are not as bottled at the distillery. The label is registered, and the design of the bottle patented.
The defendants’ front label reads:
MOUNT VERNON PURE RYE WHISKEY.
Bottled and Guaranteed by
ROSS & ICE)ANY,
New York.
The defendants’ rear label reads:
CAUTION: We guarantee this whiskey distilled by THE HANNIS DISTILLING CO. Baltimore, Md. matured by ago and bottled under our own supervision. ROSS & KEANY.
Complainant, of course, has no exclusive right to the name “Mount Vernon,” ánd the labels of defendants are in no sense an imitation of the labels of the complainant. Complainant’s case rests solely on the form of package, which it claims has been so imitated as to make out a case of unfair competition.
About December, 1885, defendants, who had been dealing in Mount Vernon whiskey for many years, began first to put it up in bottles, which are Chinese copies of the peculiar square-shaped, bulging-necked bottles of the complainant. Of course, they aver that this was without any inlenlion “to deceive the public,” “or to palm off defendants’ goods for complainant's.” They account for the sudden appearance of their output of Mount Vernon whiskey in this form as follows. “There w'as a, demand for Mount Vernon whiskey along in November last, and defendants sought a convenient and useful package in which to place their product upon the market, and purchased a stock of bottles of the square form for that purpose, without making a special design therefor, and in the open market;” and allege that “such bottles can be purchased of reputable bottle manufacturen-! from molds used for some time last past.” This last averment r.i y well be true. The industry of defendants’ counsel has maralmled here an array of square-shaped bottles filled with whiskey, which shows that for some time imitations of complainant’s bottle have been on the market. But there is not a word of proof to trace bade any one of these bottles to a period anterior to the adoption of the square shape by complainant’s predecessor as a distinctive form of package. Despite defendants’ denials, — and they only deny intent to deceive the public, not intent to use a form of package just like complainant’s, — the court cannot escape the conviction that they found the square-shaped bottle “convenient and useful.” because it was calculated to increase the sale of their goods; and that such increase, if increase there be, is due to the circum
It is contended that complainant is not. entitled to an injunction because its own representations are untruthful. This contention is not established by the proof. The label does not assert that the whiskey is “bottled by the Hannis Distilling Company,” but only that it. is “bottled at the distillery.” Nor is there anything in the suggestion that the bottling is not done within the very four walls in which the whiskey is distilled. It is done on premises of the Hannis Distilling Company, known generally as its “Distillery,” and within the 600 feet prescribed by the statute from the room in which the stills are located.
The fact that complainant also puts up in bottles of the same shape another brand of whiskey, known as “Hannisville,” made by the same distilling company in another of its distilleries, and bottled by complainant under a similar contract to the one above referred to, is wholly Immaterial.
Injunction pendente lite is granted against the further use of the square-shaped, bulging-necked bottle as a package for Mount Vernon whiskey.