Grocers Supply Co. v. I. Renaud Co.
125 N.E. 144
Mass.
1919
Check Treatment
Braley, J.

It having been decided in Grocers Supply Co. v. I. Renaud Co. 219 Mass. 576, that the plaintiff had acquired the exclusive right to make and vend in this Commonwealth a bleaching and cleansing fluid under the trade name of “Kormon” water and in connection with the sale to use a distinctive label, relief was granted enjoining the defendant from manufacturing and selling a similar fluid under the name adopted by the plaintiff and from putting it upon the market in bottles or other containers bearing a label of such similitude to the plaintiff’s that the ordinary buyer would mistake the defendant’s for the plaintiff’s product, the case was referred to a special master “to find . . . what profits, and damages if any, the plaintiff is entitled to.” The defendant upon the coming in of the original and supplemental reports alleged exceptions which having been overruled and, a final decree having been entered for the plaintiff, it appealed to this court.

While the former decision is decisive on the questions of liability for infringement and diversion of profits, the defendant contends under the first exception that the master should have found that the plaintiff’s conduct constituted such acquiescence as to preclude *184it from recovering profits during the period from March 1, 1909, to March 26,1915. It is settled that both damages and profits are recoverable and the master expressly finds that there was no conduct ón the part of the plaintiff which justified the defendant in believing that the plaintiff acquiesced in the manufacture and sale of the fluid under the name “Kormon” water or names similar thereto “unless it was so justified as a matter of law by the facts I find and report herein.” The evidence is not reported and in so far as the question of waiver and acquiescence was one of fact the finding of the master is conclusive, and the facts found are not sufficient as matter of law to establish an abandonment by the plaintiff of its rights for reasons stated in our former opinion. The first and second exceptions must be overruled. Regis v. Jaynes & Co. 191 Mass. 246. Reading Stove Works v. S. M. Howes Co. 201 Mass. 437. Forster Manuf. Co. v. Cutter-Tower Co. 215 Mass. 136.

Nor can the third exception, which is to the refusal of the master to find and rule that gross profits which the defendant received from certain sales should not be allowed, as only net profits were recoverable, be sustained. To allow the defendant, as now urged in argument, to charge upon the gross profits any share of its general operating expenses would be to permit it to take advantage of its own deliberate wrong when it intentionally palmed off its goods as having been made by the plaintiff. Regis v. Jaynes & Co. 185 Mass. 458, 462. Reading Stove Works v. S. M. Howes Co. 201 Mass. 437,443, and cases cited.

The result is that, finding no error, the decrees are severally affirmed with costs of the appeal.

Ordered accordingly.