195 F. 28 | 3rd Cir. | 1912
“Gentlemen:
“The Crown Stogies Cigars, originated and manufactured by Augustus Pollack of "Wheeling, W. Va. U. S. A. distinguished by national recognition for ■perfect purity, absolute naturalness and uniform, excellence, have achieved their rank and fame by the cultiva tion under most trying circumstances, during more than a generation, of an unceasing devotion to ideal industrial integrity, loyalty to fair wages, elevating conditions of labor and highest standard of expert workmanship by the undersigned. The maker of the Crowns honored by the eloquent testimonials from distinguished sources in different sections of our country, conveying the popular impressions created by ‘The Pollack Grown Stogies,’ gratefully acknowledges his indebtedness to American encouragement, and requesting a continuance of approval and favorable consideration, avails himself of this occasion to tender his assurance of appreciation and high esteem.
Yours truly,
Augustus Pollack.”
At the foot of the letter was the statement that “The grades of the Crowns under protection of U. S. Patent Office Registration and Guarantee of Augustus Pollack” consisted of those shown in a list of patent office trade-mark registrations, therein set forth. This statement was misleading to purchasers, for the registrations were obtained, not by Augustus Pollack, but after his death by the complain
“The maker of the Crowns, honored,by the eloquent testimonials from distinguished sources in different sections of our country, conveying the popular impressions created by ‘The Pollack Crown Stogies,’ gratefully acknowledges his indebtedness to American encouragement, and requesting a continuance of approval and favorable consideration, avails himself of this occasion to tender his assurance of appreciation and high esteem.
Yours truly,
Augustus Pollack.”
It appears from the testimony of the complainant that the circular letter above quoted was used before the death of Augustus Pollack, and it also appears that the latest date on that letter is 1910. But whether it was used in the life-time of the decedent is in our view immaterial, for after his death its continued use by the complainant without explanation amounted to a false representation that such death had not occurred and that purchasers would obtain the product, not of the complainant, but of Augustus Pollack. And this misrepresentation was accentuated by the insertion in the circular letter of a date years after Augustus Pollack had died. That the identification of Augustus Pollack in the public mind with the continued manufacture and sale of crown stogies cigars was considered by the complainant as an important factor in securing custom there can be no question; for it is stated that, manufactured by Augustus Pollack, they “have achieved their rank and fame by the cultivation under most trying circumstances, during more than a generation, of an unceasing •devotion to ideal industrial integrity * * * and highest standard of expert workmanship by the undersigned,” to wit, “Yours truly, Augustus Pollack.” The record discloses a number of letters written after the death of Augustus Pollack which were put in evidence by the complainant for the purpose of showing the high reputation of the Pollack stogies, and it is a significant fact that of twenty-one such letters written in the years 1908 and 1909, fourteen were addressed to Augustus Pollack personally. If one, having right by succession to employ a trade-mark, trade-name, label or other distinguishing mark in the conduct of his business, deliberately makes such use of it as is intended or calculated to deceive or mislead the purchasing public with respect to the origin, manufacture or ownership of the goods in connection with which it is used, he is not entitled to relief in equity against persons infringing or wrongfully using such trademark, trade-name, label or other distinguishing mark to his detriment in connection with the sale of their own goods. While little can be said by way of justification of the conduct of the defendants, and without discussing the evidence in detail, we agree with the court below that the course of the complainant after succeeding to the business of Augustus Pollack was not such as was demanded by a proper regard for the protection of the public against deception touching the subject matter as to which protection is sought against the defendants, and that his acts and omissions leave him no standing in a court of
J. B. McPHERSON, District Judge, dissents, believing that the facts of this case do not call for the application of the doctrine of “clean hands.”