| U.S. Circuit Court for the District of Eastern Wisconsin | Jun 12, 1899
The allegations of the bill of complaint are fully sustained by the testimony, and a case of unfair competition in trade is clearly established against the defendants. The facts are substantially as follows: The firm of Heinrich Franck Söhne, of Germany, are manufacturers of chicory as a substitute for coffee,' having several factories in Europe. Their establishment dates from about the year 1822, and its business has been extensive and well known for half a century, and their products under the name of “Franck Kaffee,” and subsequently of “Franck Chicory,” have been sent to all parts of the civilized world. For upwards of 35 years they have had large trade in the United States, and in 1895 established the branch firm of Heinrich Franck Söhne & Co., in this country, at Flushing, L. I., the members of which are complainants in this action. The designation “Kaffee” was abandoned in the United States some years since, to avoid infringement of “pure food” laws in several states, but the names “Franck Chicory,” and “Genuine Franck,” or “Aechter Franck” (the German equivalent), have been constantly preserved. The packages have been made for upwards of 25 years in cylindrical form, inclosed in red paper, and familiarly known as “Franck’s Red Roll Chicory.” Under the name of “Franck,” and in such livery, the product obtained some degree of popularity among the Germans of Wisconsin, esjrecially at and in the vicinity of Milwaukee, and including Cedarburg, where the defendants’ business was established. In 1892 the “Frank Chicory Company” was organized at Cedarburg, and entered upon the manufacture of chicory under that name, in packages which are clearly colorable imitations of the complainants’ production. The name of “Frank” is claimed to have been derived from the name of a farmer, who was one of the stockholders, and who raised chicory, although he was neither a principal stockholder nor manager of the business. The president of the defendant company is a grocer, and admits his acquaintance with and dealings in the “complainants’ red roll chicory” for 15 or 20 years, and that such color was adopted by his company because it “was the popular color.” The name “Frank” was evident^ found serviceable, and adopted for the same reason. Subsequently, when the question of infringement was raised, the defendants changed the labels on a portion of their production to read “Cedarburg Chicory Company,” instead of “Frank Chicory Company,” but preserved the same general appearance, form, and color; and the earlier label was not discontinued in actual use. As it is manifest from the undisputed testimony that the defendants entered the field with the imitation which was both calculated to and did deceive purchasers who were familiar with the complainants’ goods, and thus captured the trade of the latter, and the substituted label is a continuation of that deception in its appearance as a whole, I am of opinion that the defendants must be enjoined from the use of either label, and from using on the label the name “Franck” or “Frank” to designate their goods, or to use a label which is so identi