94 F. 500 | U.S. Circuit Court for the District of Southern New York | 1899
Upon the proofs in this case it is clear that the name “Vichy” is not a trade-mark or trade-name of the complainants in the strict legal sense of the term, but is a geographical name, applied by them as well as various other owners of mineral springs at or near Vichy, in the department of Allier, France, to designate the locality of origin, and indicate the general characteristics of the waters. The bill can only be maintained upon the theory of unfair competition by the defendants and their testator in applying that name to the artificial mineral water manufactured and sold by them in this country. Canal Co. v. Clark, 13 Wall. 311; Mill Co. v. Alcorn, 150 .U. S. 460, 14 Sup. Ct. 151; Association v. Piza, 23 Blatchf. 245, 24 Fed. 149; Newman v. Alvord, 51 N. Y. 189; Wotherspoon v. Currie, L. R. 5 H. L. 508-513.
For 50 years or more artificial mineral waters approximating more or less closely in their ingredients and properties to the natural Vichy water have been prepared and sold by the name of “Vichy” by manufacturers in Europe and in this country. Natural waters lose their original virtues, more or less, when removed from their sources, while artificial waters manufactured under pressure of carbonic acid gas remain intact in all their ingredients. Mr. Schultz, the testator
Assuming that the use of the name “Vichy” in connection with the artificial water made by Schultz may have tended to divert to some extent sales of the water of the complainants, I do not think it tended appreciably to confuse the identity of the two articles.
If it should be assumed, however, that Schultz’s use of the name did tend to some extent to confuse the identity of the two articles, the case presents the question whether, after he had used it for nearly 80 years, publicly and notoriously, without any interposition on tin* part of the complainants, the latter can be heard to assert the right to an injunction. It is impossible that the owners of the natural waters should not have known that wherever they were extensively sold artificial waters were being made and sold extensively by the same name. If the artificial waters liad been made and sold as purporting to be the natural waters, there would be less equity in the defense of laches and acquiescence; but they were not. They were made and sold to supply a demand for artificial waters having properties similar to those of the natural water. It is very late to ask the intervention of equity to suppress a course of business which originated innocently, and has been so generally adopted. Equity is indisposed to assist parties who have slept upon their rights, and acquiesced in their appropriation by others for a great length of time. The unexampled delay and acquiescence in the present case, I think, should defeat the action. Manufacturing Co. v. Williams, 37 U. S. App. 109, 15 C. C. A. 520, and 68 Fed. 489; Lane & Bodley Co. v. Locke, 150 U. S. 193, 14 Sup. Ct. 78; McLaughlin v. Railway Co., 21 Fed. 574.
The bill is dismissed, with costs.