37 F. 359 | U.S. Circuit Court for the District of Massachusetts | 1889
The complainants are the owners of a trade-mark consisting of the head of an elk,4with the word “Elk” printed in large letters upon the face of the label, and this mark has been used by them for a number of years upon boxes of cigars. The defendant brands certain boxes of cigars made by him with substantially the same device. In view of the close identity of the two devices, the defendant cannot deny infringement, but he places his defense on other grounds. 1 will consider those which are most important.
It is said that the trade-mark is invalid because it does not designate origin or ownership. This is manifestly unsound. The original design contained the letters “A. L. & Bro.,” standing for A. Lichtenstein & Brother, and, as now used, it has the words printed on it, “Patented by the Elk Cigar Factory, June 15, 1875.” There is also stamped upon the box the district in New York in which the factory is located. Since 1875 these cigars of the Elk brands have been made by A. Lichtenstein & Bro., or tlieir successors, A. Lichtenstein, Son & Co., and their factory has been known as the “Elk Cigar Factory.” It seems to me that the trade-mark sufficiently indicates origin and ownership.
Again, it is said that the complainants deceive the public, in that they allow the boxes to be labeled with the names of dealers to whom the cigars are sold, or for whom they are made. But this is shown to be a custom in the cigar trade, and I do not think it results in any deception or false representation. All these cigars are in fact made at the Elk Factory, and they are so stamped, and when the public buy them, they are
It is further urged as a defense that the complainants make different brands of cigars, all of which are called “Elk.” But if, as appears, these brands are designated by something which distinguishes one from the other, then no deception is practiced. I see no reason why this trademark should not be used in good faith on different brands or grades of cigars all of which are made by the complainants.
The defendant also claims that the complainants gave him permission ■to use this trade-mark on the goods sold by him, but the evidence does not, in my opinion, sustain his position. This seems to me a case where the defendant has wrongfully appropriated a trade-mark belonging to others, and in none of the defenses brought forward can I find any justification for his action. Let an injunction issue as prayed for. Injunction granted
