102 Ky. 133 | Ky. Ct. App. | 1897
delivered the opinion oe The coubt.
The appellants were manufacturers and dealers in cigars in Louisville, Ky., and without right or claim of right used on boxes of (cigars manufactured and sold by them the blue label of the Cigar Makers’ International Union of America, a fao simile of which is as follows:
Thereupon appellees, Powers, Kieffer and Woppriee, suing for themselves and all their associates and fellow members in the Cigar Makers’ International Union and the Cigar Makers’Protective Union No.32, and joining these twoorgani-zations also as plaintiffs, brought this action to prevent this alleged wrongful use of the label.
The International Union, embracing, according to the petition, some-members and the local union some-members are voluntary, unincorporated labor organizations, composed solely of practical cigar makers. They are working men who do not own the product of their labor, being exclusively wage workers. The purpose of these unions, as said in the petition, is generally to maintain a high standard of workmanship and secure fair wages to cigar makers, to elevate the material, moral and intellectual welfare of the membership and by legitimate, organized effort to secure laws prohibiting labor by children under fourteen years of age, the abolition of the “truck” system, the tenement house cigar manufacture and the manufacture of cigars by prison convict labor. Other praiseworthy objects are set out which need not be detailed. It is further averred that, for the purpose of designating the cigars made by members of the union
The appellants, for defense, do not ■ deny the use of the label as charged in the petition, but it is insisted by them that this label does not possess any of the elements of a trade-mark; that the appellees are engaged in no trade, having nothing to sell, and, therefore, nothing to protect by a trade-mark; that none of them are engaged in the business of selling cigars; they are “simply workmen employed by other people making cigars, first by one person and then another, and those persons sell the cigars;” that the plaintiffs, therefore, “have not shown any property right in the label as a trade-mark or otherwise.” Moreover, that the membership is an ever changing one, constantly varying in numbers, composed of a few thousand to-day and many thousand to-morrow — “a shifting crowd.” That the plaintiffs, therefore, are not qualified to sue and have in fact no legal rights that can be made the subject of a suit.
Moreover, it is urged that the plaintiffs do not come into court with clean hands; that they are members of an organization lately engaged in boycotting the defendants and at
And, first, we may admit that the label is not used as a trade-mark in the ordinary sense of that word. It is not a brand put on the goods of the owner to. separate or distinguish them from the goods of others, but we can not agree on that account that it does not represent a valuable right which may be the subject of legal protection. Why may not those engaged in skillful employment so designate the result of their labor as to entitle them to the fruits of their skill when it is admittedly a source of pecuniary profit to them ? And this, though they may not own the property itself?
'They are not, it is true, “in business” for themselves in the ordinary sense, but they have property rights nevertheless. They may not select a label and be protected in its use apart from its. connection with some commodity; but they not only select it in this instance, they apply it to property, and it does not at all matter that the tangible property is that of anothei
In order to get the benefit of the superior reputation of cigars made by them the appellees select and apply this label as a distinguishing brand or mark. And it would be strange if this thing of value, this certificate of good workmanship and which makes the goods made by them sell and thus increases demand for their work, be entitled to no pror t'eetion, because those making the selection and application
In a-number of the States laws have been enacted giving protection to the men engaged in the business of working for wages, and their right of organizing and selecting appropriate symbols to designate the results of their handiwork is recognized and ordained to be the subject of lawful protection by the courts. Thus in this State, in April, 1890, a law was enacted by the General Assembly providing that “every union or association of working men or women adopting a label, mark, name, brand or device, intended to desig nate the product of the labor of the members of such union, shall file duplicate copies of such label in the office of the secretary of State, who shall then give them a certificate of the filing thereof, and that every such union may, by suit in any of the courts of the State, proceed to enjoin the manufacture, use, display, etc., of counterfeits or imitations of such labels, etc., on goods bearing the same, and that the court having jurisdiction of the parties shall grant an injunction restraining such wrongful manufacture, use, etc., of such label,” etc.
This suit was filed before the adoption of this statute, but it indicates the policy of the law, the growth or expansion and perhaps the creation of legal remedies hardly known to ancient trademark law.
The learned chancellor below, in an exhaustive opinion reviewing all the authorities, among other things, said, and we
■ The question has engaged the attention of a number of the courts of this country, but the conclusions reached have not been uniform.
In Weener, &c., v. Brayton, 25 N. E. R., 40 (Mass., 1890), it was held that an injunction against the wrongful use of the label of the International Cigar. Makers’ Union should not be granted because of special injury to plaintiffs, who were officers and members of the union, but were not manufacturers of or dealers in the cigars on which such label is used, and to the same effect are the cases of Cigar Makers’ Protective Union v. Conhaim, &c., 40 Minn., 243; McVey v. Brendel, 144 Pa. St. Rep., 235. However, a number of the
In Kohn v. People, 149 Ill., 486, the court upheld the constitutionality of the Trades Union Act in that State, and as the court, independent of the statute, disposed of one of the contentions of counsel in the ease, which is also relied on here, we quote in part its argument: “It is next objected that the label, an imitation and counterfeit of which is alleged
“By reference to the label heretofore set out it will be seen that it is a certificate, signed by the president of the Cigar Makers’ International Union of America, certifying that the cigars contained in the box upon which it was placed were ‘made by a first-class workman, a member of the Cigar Makers’ International Union of America, an organization opposed to inferior, rat shop, coolie, prison or filthy tenement-house workmanship.’ And it concludes: ‘Therefore, we recommend these cigars to all smokers throughout the world.’ The purpose, as derived from the label itself, is to send the cigars out to the public with the assurance that they are made by a first-class workman, who belongs to an. order opposed to the inferior workmanship designated. It will be observed that the label attacks no other manufacturer of cigars. It says simply, in effect, these cigars are not the product of an inferior, rat shop, coolie, prison or filthy tenement-house workmanship. Can it be said that one may not, without condemning or aspersing the product of other manufacturers, commend the article he has for sale? If he may do so himself, may he not procure the certificate of others as to the quality of the article he puts upon the market.” (State v. Hagin, 6 Ind., Appeal, 109; Carson v. Ury, 39 Fed. Rep., 77.)
The judgment is affirmed.