Ellis v. J. H. Zeilin & Co.

42 Ga. 91 | Ga. | 1871

Lochrane, C. J.

1. The defendants in error filed their bill in equity, alleging that they are entitled to the sole and exclusive manufacture and sale of a certain medicinal preparation known as “Dr. Simmons’ Liver Regulator or Medicine,” having acquired the right thereto by purchase from the son of Dr. A. Q. Simmons, the inventor. They allege that they have expended large sums of money in manufacturing, advertising, etc., and that it has become widely known and justly celebrated for the purposes it is intended, medically, to accomplish, and that they have adopted certain trade-marks in which their packages are put up, which have been entered under the Copy-Rights law in the District Court of the United States, at Savannah.

They further allege that Ellis, the plaintiff in error, has commenced to sell a preparation which he calls “Simmons’ Genuine Liver Medicine,” and is putting it up in similar form and size of packages, and the general appearance and printed endorsements thereon is intended to convey the impression and take advantage of the reputation which Zeilin & Company’s preparation has acquired, and which they allege to be a fraud on their rights, asking injunction and such other relief as may be within the power of a Court of Equity to interpose.

To this bill the defendants filed a demurrer, and it is upon the judgment of the Court below overruling the demurrer that error is assigned, and the question now comes before this Court. Our judgment is invoked upon the facts admitted by the demurrer as they are alleged to exist in the bill; and one main distinguishable criterion in all cases of this character is the intention of the parties in using the similarities of trade-marks claimed by another, which by the pleadings is admitted to be “ to take advantage of the reputation ” of the manufacture of Zeilin & Company. The language is “ that the said Ellis is imitating the form and style of the package and wrapper used by your orator as aforesaid to take advantage,” etc.

It will be noticed that the bill does not charge Ellis with making the same article. In fact, the exhibits negative this idea, for Ellis publishes his article as prepared only by him, and Zeilin & Company say their preparation is prepared only by them. Again, Ellis calls his (immediately under a large symbol not in the other label) Dr. A. Q,. Simmons’ Genuine Liver Medicine, the other is “Dr. Simmons’ Liver Eegulator or Medicine.” The type used is different, the arrangements of words different; classes of disease different in part. And upon a fair view of the trade-mark on these packages we are not satisfied that they appear to imitate Zeilin & Company’s medicine, but rather to set up an original and distinct claim to the medicine put un and sold by Ellis.

2. In matters of trade-mark we lay down the rule to be, that, in order to authorize the interposition of a Court of Equity, the title to the use and enjoyment must be clear and unquestionable, and will be adjudicated only upon the rights of parties before the Court and as between their conflicting claims, and not with a view to the guardianship of the public upon the merits or demerits of nostrums, except in cases where injury to the public health or morals enters into the ingredients of the allegations.

And in matters of medical agents, whose effects are upon the human system, any man has a right to compound his liver medicine or other medicine and publish all the diseases within its range of cure, no matter how many predecessors or precedents he may have had, and to put it in such bottles or packages as he pleases, so long as he does not set up the right to another man’s property or advertise for sale another man’s wares, and does not use his invention with its prints, packages and symbols as his own. As soon as he does this he is liable in law, and will be restrained. We recognize the property in trade-marks or business, but do not recognize that every person is restrained from putting his own in two ounce bottles or four ounce packages, and printing the diseases it will cure, because somebody else has done so.

The line is drawn around the invention and its devices, only so far as to prevent another taking it and appropriating it. Similarity of disease in its classification or of symptoms in their various phases are the property of all.

We do not think there was equity in this bill on the mere question of similarity in the trade-marks. But as the demurrer admits that what was done was done, intentionally to take advantage of the reputation of his “ Simmons’ Liver Medicine,” we cannot hold the Judge below erred in retaining the bill for a hearing to let the whole matter be determined upon its merits.

Judgment affirmed.