96 Cal. 518 | Cal. | 1892
— This action was brought to restrain the defendant from making or selling any razor having a stamp thereon, or upon the case thereof, showing the words “ Queen’s Own,” or the words “ Queen’s Own Co.”
The plaintiff alleged that he had been for many years importing razors, which he had caused to be manufactured in England; and in order that said razors might become known in the market and easily identified, and their origin known, he had caused each one of them to be stamped upon the “tang,” which is the thick part of the razor blade back of the cutting part, with the words, “ Queen’s Own Co.” He alleged that on account of said trade-mark the razors had become known in the commercial world as the “Queen’s Own” razors, and had acquired great reputation with the public for excellence of quality; that the defendant had been selling razors which were marked in conspicuous letters upon the blade thereof, “ Queen’s Own”; and that the imitations were calculated to deceive those desiring to purchase plaintiff’s razors. The court found that all of the razors offered for sale by the plaintiff have stamped upon the shank on one side the words “ Queen’s Own Co., Sheffield”; that in point of fact the razors are not manufactured by any company or firm known by the name or designation of “ Queen’s Own Co.,” nor manufactured in Sheffield, England; that the defendant has not sold any razor which, by a stamp or general appearance, was designed or calculated to mislead the public as an imitation of the plaintiff’s razors; that “there was a total dissimilarity between them, and apparent to any person upon even the slightest inspection.”
The only question raised on this appeal is as to the sufficiency of the evidence to support these findings of the court.
We cannot say that the findings are not supported by the evidence. It is true, the plaintiff, in his direct
Assuming the facts found to be correct, as we must, the plaintiff is seeking to enjoin the defendant from using a trade-mark which he himself is not, in equity or good conscience, entitled to use, because it is a fraud upon the public. The evident purpose of the defendant’s stamp upon the razor and his advertisement and label, as the court below said, were “ to cause the purchasing public to believe that these razors are manufactured by a firm known as the ‘ Queen’s Own Co.,’ and in Sheffield, England,” when in point of fact he did not know where they were manufactured, nor by whom. The positive assertion of a thing not known to be true is as reprehensible as the assertion of a thing which is known to be untrue. Assuming, therefore, that the defendant did make and sell razors precisely like those sold by the plaintiff, the latter cannot complain. The plaintiff’s purpose in endeavoring to make the public believe that his razors were manufactured in Sheffield is manifest. He testified that “ English cutlery is better than German.....In no part of the world is the manufacture equal to the English. Hot even American goods.” Cutlery manufactured in Sheffield has a wide reputation for excellence.
In view of what has been said, we deem it unnecessary to consider the question whether the defendant’s razors were so formed or stamped as to lead the public to believe they were of the same kind as those sold by the plaintiff. We have preferred to rest our decision upon a ground which will tend to discourage the use of false and misleading trade-marks and labels.
The judgment and order are affirmed.
Garoutte, J., and Harrison, J., concurred.
