32 F. 389 | U.S. Circuit Court for the District of Eastern Wisconsin | 1887
The material facts upon which the decision in this case turns are, in the main, undisputed. The complainant’s bill is for an injunction and accounting, and for the cancellation of a contract. It appears that on the thirty-first day of May, 1878, Samuel W. Warner and Alice E. Showcrman were the owners of a lot in the village-of Waukesha, upon which there was a spring of mineral water, valuable for its medicinal quality, and for table use. The owners of the spring, and the defendant Lockwood, on the day mentioned, entered into a contract, by which Lockwood acquired the exclusive right to sell the water supplied by the spring in the New England and Middle states, Maryland, and the Bis-
On the sixth day of January, 1879, the complainant purchased the spring property from Warner and Showerman. It is claimed by the complainant that she was induced to make the purchase by representations of Lockwood that he had widely extended the reputation of the spring, and that, if she would acquire the ownership of the property, and give him the exclusive and unlimited sale of the water for a period of 20 years, he would devote his entire time to the control and management of the spring, and would make large profits for both parties. The defendant Lockwood denies that he made such representations to the complainant, and contends that she made the purchase independently of any solicitation or representation on his part. Whether it be true or not that she made the purchase upon the specific inducement or representation alleged, the court is satisfied from the evidence that the complainant, in becoming interested in the enterprise, and in acquiring the ownership of the spring, was largely influenced by the expectation held out to her by Lockwood, that, under his management, her acquisitiozi of the spring would be made profitable. Of this it seems there can be little doubt; and she purchased the spring with the name “Clysmic” attached to it, and knowing that the waters of the spring were being sold by that name. Lockwood had been desirous, before Mrs. Hill’s purchase, of securing an extension of his right to sell the water from 15 to 20 years, and also an enlargement of the right, so that it should be unlimited in territorial extent; and the negotiations and circumstances point to the conclusion that this was the chief object in view, on his part, when the complainant purchased the spring. This view of the circumstances- under which Mrs. Hill acquired the ownership of the property., is confirmed by the fact that on the fifteenth day of February, 1879, she entered into a contract with Lockwood, which began with the recital: “Whereas, it is deemed for the mutual interests of the parties hereto, for the purpose of advancing the sale of the waters from such spring, [meaning the Clys-mic spring in question,] that the party of the second part [Lockwood] should have the sale thereof;” and then provided, among other things, that the complainant should furnish Lockwood with the spring water as he required, for the purpose of selling the same in any and all parts of the United States, or for export to any foreign country; that Lockwood should have, during the continuance. of the agreement, the exclusive
After the execution of this agreement, Lockwood continued the sale of the water from the spring; and the testimony tends to show that, at the close of the year 1883, the business bad become extensive and lucrative. He caused the water to be analyzed by a distinguished chemist, advertised it in newspapers and in pamphlet form, and procured many testimonials of its value for medicinal and table uses; and the water was not only sold in barrels and half barrels, But in bottles, which, with other inscriptions thereon, were labeled “Clysmic,” “Natural Mineral Spring Water from Clysmic Spring, Wis.,” “The King of Table Waters,” etc.; and as “Clysmic Water” it acquired a high reputation among consumers throughout the country, which was largely due to the exertions of Lockwood in developing the enterprise and prosecuting the business.
As the reputation of the water became extended, and the demand for it increased, Lockwood conceived the project of developing another spring in his own right of ownership, and marketing water therefrom, under the name of “Clysmic,” in connection with the salo of the waters of complainant’s spring. In furtherance of this scheme, he purchased a piece of ground adjacent to the spring lot of the complainant, and subsequently opened up a new well or spring, and in February, 1884, began to ship and soli water from this source, in the same manner, by the same name, and under the same label, substituting only “Clysmic Springs'” for “Clys-mic Spring,” as he had been selling from the complainant’s spring; and by August 11. 1884, according to the testimony as it is understood by the court, he had shipped from the new spring, of which he was the owner, nearly 600 barrels of water, which were branded “Clysmic Water,” and which lie sold to patrons as and for “Clysmic Water.” From the time the new spring was opened and developed, the defendant shipped wafer indiscriminately from either spring in filling orders for “Clysmic Water,” and this he claims the legal right to do; his contention being that the contract relations between himself and the complainant do not oblige him to deal exclusively in the waters of complainant's spring, and that as he first adopted and used the name “Clysmic” in developing the spring and selling the water, he became the personal proprietor of the name as a trade-mark, and may therefore apply it to his own spring, and the water derived therefrom. A good deal of testimony has been taken on the question of the comparative merits of the waters of the two springs, in point of quality and chemical constituents, but this question is regarded quite immaterial, so far as it has any bearing upon the essential points of legal controversy in the case.
It is not difficult to discover the object which the parties had in view, and sought to attain, in making the contract of February 15, 1879. The
The contention of the defendant that the name “Clysmic,” as applied to the complainant’s spring, was not appurtenant thereto, but was his own property-, and that he was at liberty to use it as descriptive of any other spring, or any other spring water in which he might deal, is un
There are trade-marks to which the characteristic of personal proprietorship attaches, because they assert to tho public that some particular person has given Ms special skill to the production or selection of the articles they cover. Leather Cloth Co. v. American L. C. Co., 11 H. L. Cas. 544; Hoxie v. Chaney, 113 Mass. 593, 10 N. E. Rep. 713; Holt v. Menendez, 23 Fed. Rep. 869. There is another class of trade-marks, which assert for the articles they designate some particular place of origin. In such case the trade-mark is inseparable from tho place. It passes as an Incident with the sale of the place. Congress Spring Co. v. High Rock Congress Spring Co., 45 N. Y. 302; In re Swezey, 62 How. Pr. 219; Manufacturing Co. v. Hall, 61 N. Y. 226; Pepper v. Labrot, 8 Fed. Rep. 29; Milling Co. v. Robinson, 20 Fed. Rep. 218.
It is unnecessary to review the authorities in detail. Limiting this decision, as we do, to an adjudication of the rights of the complainant and the defendant Lockwood during the continuance of tho contract relations subsisting between them, we must hold that the name “Clysmic” became affixed and appurtenant to the complainant’s spring, as indicating tho source of the water known to the public as “Clysmic Water,” and that the complainant cannot bo deprived, in the manner attempted by the defendant, of tho advantage which has accrued to her, as the purchaser of the spring, from such designation. We regard this ruling as fully sustained by the principles laid down in the case of Congress Spring Co. v. High, Rock Congress Spring Co., supra.
Woodward v. Lazar, 21 Cal. 448, much relied on by counsel for the defendant, is distinguishable in principle, and in its facts, from the case at bar. There, the lessee of a lot of land, (tho plaintiff in the easel erected upon it a building which ho occupied as a hotel, to which he gave the name of “The What Cheer House.” Before the'expiration oí his lease, he purchased an adjoining lot, upon which he erected a larger
On the grounds previously stated, and without extending the discussion further, we are of the opinion that the complainant is entitled to a decree in her favor. But we think the annulment or forfeiture of the contract of February 15, 1879, ought not, at least at present, to be
A decree will be entered restraining the defendants during the whole period of 20 years from the fifteenth day of February, 1879, from shipping or selling any water from the spring of the defendant Lockwood, as or under the name of “Clysmic Water,” and from in any manner applying or using the word “Clysmic,” during that period, in the sale of any water, except that derived from the spring of the complainant. Also, that the complainant recover damages against the defendant Lockwood by reason of the water shipped and sold from the defendant’s spring as “Clysmic Water,” which are assessed at $622.50, this being the amount which the complainant would have received, if the same had been shipped from her spring. The decree will also provide that, in case of further violations of the contract or breaches of duty by the defendant Lockwood, the complainant will have leave by supplemental bill, or by original bill to be hereafter filed, as she'may elect, to apply for relief in that behalf.