37 F. 695 | U.S. Circuit Court for the District of New Hampshire | 1889
This is a motion for a preliminary injunction. The principal issue raised is whether the words “indurated fibre” are the proper subject of a trade-mark. The plaintiff corporation is called the “Indurated Fibre Company,” and is located in Portland, Me., and the defendant corporation is called tlie “Amoskeag Indurated Fibre Ware Company, and 'is located in Manchester, N. IT. Upon the papers before me, it may be said, I think, that the plaintiff is the owner of the words in question, provided they are the subject of a valid trade-mark, and also that the defendant stamps its wares with the same words, and further, that the wares made by the two companies are generally similar in composition and appearance. To grant a motion of this character I must be clearly satisfied of the plaintiff’s legal rights. If I have serious doubt upon the question of the right of the plaintiff to a trade-mark in the words claimed, this motion should be denied, and the issues now raised should be left for determination upon final bearing. Upon consideration of the affidavits and the authorities referred to by counsel, I have a grave doubt whether these words can constitute a valid trade-mark. It seems to me that they do not sufficiently point either by themselves or by association, to the origin, manufacture or ownership of the article produced, but that they rather indicate the quality, class, grade, or style of such article; or, to express the distinction in another form, that they are not arbitrary or fanciful words, but are descriptive rather of the quality, ingredients, or characteristics of the
A name alone is not a trade-mark when it is understood to signify, not the particular- manufacture of a certain proprietor, tout the kind or description of thing which is manufactured. Hostetter v. Fries, 17 Fed. Rep. 620; Battery Co. v. Electric Co., 23 Fed. Rep. 276. Anything descriptive of the properties, style, or qualify of an article merely, is open to all. Sewing-Machine Co. v. The Gibbens Frame, 17 Fed. Rep. 623. The words “compressed yeast” indicate the character and composition of an article, and are not the subject of a trade-mark. Fleischmann v. Newman, 2 N. Y. Supp. 608. In general, as to what words will be protected as a trade-mark, see Manufacturing Co. v. Stone Co., 35 Fed. Rep. 896, and note; People v. Fisher, 3 N. Y. Supp. 786.