49 F. 944 | U.S. Circuit Court for the District of Southern New York | 1892
This is a bill in equity, brought by the plaintiffs, who were and are owners of the copyrights in various editions of Webster’s Unabridged Dictionary, and publishers thereof, to restrain 1he defendant from offering for sale or selling a cheap reprint of the edition of 1847 under representations which import that it is a copy of the (dition of 1864 or of one of its successors, upon which editions the plaintiffs have expended a large amount of money, and which have had a high reputation. The bill is not based upon any supposed trade-mark lights in the name “Webster’s Dictionary.” It has no substantial foundation upon any alleged imitation or simulation of the external appeartnce of the plaintiffs’ edition of 1864. Its proper foundation is upon the alleged attempts of the defendant to pass off upon the public a reproduction of an inferior edition which had long since gone out of the market £ nd into general disuse, as the superior and widely known edition which had been prepared and published by the plaintiffs or their predecessors £ t great expense. The bill alleges, in substance, as follows: That the «dition of 1864, which was published originally by the firm of G. & C.
The foregoing allegations of the bill are true. After the copyright upon the editions of 1847 and 1859 had expired, Ogilvie & Co., of Chicigo, caused to be printed and published a copy of so much of the edition of 1847 as contained the words and definitions, with the principal part of the additions contained in the edition of 1859, including its appendix of new words. As this copy was made from photo-lithographic plates, the columns and paging were the same as in the.original edition. rIhe title-page was the first part of the title-page of 1847, and, in addition, purported to state the additional material which was contained in the book, and at the bottom of the page appeared, in distinct type, the ■words, “Chicago, Illinois. Published by E. W. Ogilvie Company, 9-15 liver street. 1890.” The book does not contain the copyright notices, the historical matter, the prefaces by the author, editor, and publisher, o’ the advertisement which were contained in the edition of 1847. It is bound in the ordinary leather binding of dictionaries and of Webster’s Dictionary, and contains upon the lid of the cover the words “Ogilvie’s Edition.” The back of the book has the words “Webster’s Dictionary” in the ordinary place in which the name of the book is printed, and below is a label, containing the words, “1,500 Illustrations and Appendix of 10,000 words.” The book, taken by itself, does not profess to be a reprint of the edition of 1864, nor to be a late edition of Webster’s Dictionary, unless that assertion is implied by the figures “1890” upon the title-page; and I am inclined to the belief that these words denote the y ear in which a book is printed, and do not necessarily denote that it is a new edition of that year. The book is, in appearance, a poorly executed reprint, upon poor paper, of the dictionary part of an old Webs ,er’s Dictionary, and would not deceive an intelligent person, who examined it, and who had a general knowledge of the subject; but the une lucated might easily be misled into the belief that it was a modern book. The defendant is a corporation, which publishes a weekly paper cdied the “Texas Siftings,” and has purchased or obtained the option of buying a large number of copies of the Ogilvie book, which it is now undertaking to sell. As an additional inducement to subscribe for its paper, the annual price of which is four dollars, it offers to furnish for five dollars its weekly paper and a copy of Webster’s Dictionary, by which
“Latest edition. Weight nine pounds, Contains 1,615 pages, 1,500 Illustrations, and 10,000 new words. Price $8.00, but given free only to Texas Sifting subscribers.”
In another advertisement it is called “Latest Edition. Price $8.00.” After stating that 100,000 copies of the dictionary had been printed for the defendant, the advertisement continues, as follows:
“ Webster’s Dictionary has heretofore been sold for no less a sum than $10.00 a copy, but, owing to the extraordinary cheapness of paper, and wonderful economy in labor connected with the improvements in machinery, that enables publishers to print ten sheets in the same time and at the same cost that they used to print one, we can offer this great and valuable dictionary at a very much smaller price than it has over been offered before.”
In another advertisement, “Siftings and this Dictionary, which in itself is"worth $10.00, will he delivered,” etc. Another advertisement contains this language:
“Mr. E. M. Pine, of the Philadelphia Inquirer, says: 4 This is the best copy of Webster’s Dictionary I ever saw.’ The editor of the Philadelphia Times, who received one of these dictionaries, writes: ‘It is immense. Inclosed find live dollars. Send another copy. We need it in our business.’ ”
It is proved that two persons — one a student in a college in Pennsylvania, and the other a hotel-keeper in Pennsylvania — became subscribers to the paper and bought the book upon the faith of these advertisements, supposing that they wore respectively to obtain a copy of the edition of Webster’s Dictionary which they knew commanded a high price. The inducement to send $5 to the publishers was the expectation of obtaining a copy of the edition for which $8 or $10 was the ordinary price, and which they desired to own. These advertisements were intended and were calculated to deceive persons who were not familiar with business. They did deceive at least two persons. They have undoubtedly accomplished, to some extent, the purpose for which they were issued. The ingenious wording of the advertisements, and the plausible statement of the reasons which permitted an $8 or $10 book to be given for $1, would naturally mislead many persons who were anxious to get a valuable dictionary, which they had theretofore been unable to obtain. The only $8 or $10 copy of Webster’s Dictionary is a copy of the edition of 1864, or of one of its successors, and the effort of the defendanis is to palm off upon the public its copies, which are worth from $1.50 to $2 each, as the hook of the plaintiffs, which is a thing of much higher intrinsic value. No direct evidence was given of the amount of the matter in dispute, but it is easy to see from the testimony that the amount is such as to give this court jurisdiction.
Upon the preceding lacts the law has been recently stated with clearness. Merriam v. Publishing Co., 43 Fed. Rep. 450; Merriam v, Shoe, etc., Co., 47 Fed. Rep. 411; Black v. Ehrich, 44 Fed. Rep. 793. The plaintiffs are not entitled to an exclusive use of the name “Webster’s Dictionary” upon copies of editions the copyrights of which have expired,