50 F. 427 | U.S. Circuit Court for the District of Southern Ohio | 1892
The bill is to restrain the infringement of the complainants’ trade-mark, under which a mixture or cordial, long known as “Gilka-Kummel,” is and has been for many years advertised and sold by the complainants and by their predecessor in business. There is a prayer for an account of the profits made by the defendants by the manufacture and sale of an imitation cordial, under the name of “Gilka-Kummel,” and with the use of the complainants’ trade-mark. The defendants filed a plea setting up that they have continuously engaged in the business of manufacturing, bottling, and selling cordials and other liquors for the past lo years; and that two of them, who were the predecessors of the present defendant firm, were engaged in such business for upwards of 5 years continuously, prior to such time; and that during the entire 20 years there were manufactured and sold, in the open market and in the business and trade of the defendants, and of the complainants, bottles, labels, packages, and other signs and devices similar to those set forth and described in the bill. Admitting that, in common with others in their trade and business^ they have in the past, and up to the date hereinafter mentioned, manufactured and sold, upon the order of customers,
The complainants have set down the plea for argument, and ask the judgment of the court on its sufficiency.
The plea must be overruled. While it is a well-settled rule that courts of equity should decline to assist one who has slept upon his rights, and shows no excuse for his laches in asserting them, there is nothing in the plea to make the rule applicable here. The complainants’ right and title to the trade-mark is not denied, and it is not alleged that they had any knowledge of the infringement by the defendants. It is true that it appears from the bill that the complainants have been represented by A. Stepeani & Co., of the city of New York, their sole and exclusive agents for the United States, with the exception of the state of California. But the inference sought to be drawn from the fact that the complainants had the means of knowledge of what the defendants were doing, and therefore were chargeable as if they had had actual knowledge, does not follow. The complainant cannot lie by for a long time before filing his bill, not only for an injunction, but for profits, without being guilty of laches, as was held in Beard v. Turner, 18 Law T. R. (N. S.) 747. There the plaintiff, having actual knowledge, waited two years before filing his bill', and the vice chancellor said he apprehended that the court would make the objection that he should have come into court at Once, for the reason that he asks for an account of the profits, and because a complainant might conclude that it would answer his purpose to let the defendant go on selling four or five years, and at the end of that time call him to an account of profits as if he were the complainant’s salesman. It was held in the same -case that it would be a fraud to allow complainant to avail himself of delay to obtain benefit for himself, and therefore the court could not give a person an opportunity of lying by, and then asking for an account of the profits made by an injury committed. The cases in which the rule is applied are cases in which the complainant was' guilty of laches similar to that stated in Beard v. Turner. But here the only circumstance relied upon to charge the plaintiffs with constructive notice is that they were represented by agents located at the city of, New York, nearly 800 -miles distant frqm the defendants’ place of business. The defendants have .been confessedly conducting all these
The defendants will be allowed 20 days within which to present an answer and apply for leave to file the same.
