71 F. 295 | U.S. Circuit Court for the District of Northern New York | 1896
Both parties are selling soap powder in four-pound packages of similar dimensions covered with paper of á dark yellow color. On ihe principal panel of complainant’s package are printed in large letters the words, “Fairbanks Cold Dust Washing Powder.” The central vignette represents two children, evidently of African descent and accustomed to the unconventional garb of tropical climates, standing behind a heap of gold coin. From their environment and contented expressions it is but just to infer
By a process of exclusion it will be manifest that the only ground of complaint against the defendant is that it covers the packages with a paper dark yellow in color. When reduced to its last analysis this must be the sum and substance of the accusation. At no other point can the complainant fault the defendant. If, for instance, the defendant had chosen pink or white as the color for its .packages, leaving them in other respects precisely as they are to-day, it is clear that there would be no cause of action. It is understood that this proposition is not seriously disputed, for the complainant’s brief expressly admits that “the defendant should not be enjoined from selling a package of the size, weight and shape of complainant’s package, nor should it be restrained from using the designation, ‘Buffalo Soap Powder,’ nor from making a powder having -the appearance of complainant’s ‘Gold Dust.’” -With the product, name, size, weight and shape free, what is there left of which to complain except ithe color? The sole question then is, has the complainant the exclusive monopoly of yellow paper in connection with four-pound packages of soap powder and is the defendant guilty of fraudulent find!unfair competition in selling its product in packages covered by puch paper? That the parties are sharp competitors in business is
Of course no merchant should be held responsible for all the unauthorized and exaggerated statements of his salesmen made outside the scope of their employment. But conceding all the testimony upon this branch of the case to be competent the impression left upon the mind is that the argument successfully employed by the salesmen was that the defendant’s powder being as good as others and considerably cheaper, it was for the advantage of the country merchants to deal in it. There is nothing of which to predicate a finding that, the defendant or its agents ever sold a package of powder intending that the purchaser should take if under the impression that he was receiving “Gold Dust.” That a small buyer, accustomed to “Gold Dust,” but not particular as to tbe precise brand, might be induced to take any one of several varieties for the powder be came prepared to purchase, cannot be gainsaid. But this would he equally true of almost any commodity. No one taking the slightest pains to inform himself could be deceived. The law cannot undertake to protect idiots or the grossly ignorant, careless or indifferent purchaser. It is made for the great mass of the people who have eyes, ears and common sense. It is enough that they are in no danger of imposition. There is no probability that a buyer of ordinary prudence will be Imposed upon by the yellow package when he is told exactly what he is purchasing in large black letters half an inch square. The principles of the highest morality are too often unheeded in the fiereé competitions of trade. In their eager race for riches the men of commerce do not hesita te to trample upon prostrate rivals or to resort to practices hardly sanctioned by the loftiest code of ethics. Courts of equity cannot, however, undertake to enforce the precepts of the golden rule except within certain clearly defined boundaries. They can interfere to prevent fraud, they can restrain a trader from selling Ills goods as those of another, they can enjoin the infringement of trade-marks, symbols and tokens calculated to mislead the public, but they cannot undertake to prescribe the language which dealers shall use in “putting” their goods, provided it is not false, nor can they prevent them from diverting their rivals’ trade by underselling them in t he market. The court is treading upon dangerous ground when it attempts to give one trader a monopoly of a package of a particular size or paper of a particular color. These things have heretofore been free. They should remain free. In the case at bar, with the exception of the yellow wrapping paper, there is no point of similarity save such as the defendant had a per-