158 Mass. 110 | Mass. | 1893
These are two bills in equity, of which the second is the most important, and we therefore take that up first. It is brought by the H. A. Williams Manufacturing Company to enjoin the defendant Noera from using the name “ Draper ” as applied to other oilers than those made by the plaintiff. The facts reported by the justice of the Superior Court, so far as material to our decision, are as follows. On February 28,1890, the plaintiff purchased the stock in trade and good will of Francis Draper & Co., including the possession of their factory, of which they were tenants at will, and took a covenant from the members of the firm not to engage in the manufacture of oil cans for ten years. A little later, by way of further caution, the plaintiff took from the same firm a grant of the exclusive right to the use of the word “ Draper ” for oilers for the same ten years. Draper & Co. had made hardware since 1833, and had put the name “Draper ” on different articles of their make. About 1880, they began to make oilers, and put their name upon them in various forms, to denote that the cans were of superior excellence. We infer that Draper & Co. acquired a right to be protected to the usual extent in the use of the word “ Draper,” and we see no sufficient reason to doubt that, in view of the continuity of the business, the name was capable of assignment by Draper & Co. to the plaintiff. Russia Cement Co. v. LePage, 147 Mass. 206, 209. Hoxie v. Chaney, 143 Mass. 592. Bury v. Bedford, 4 DeG., J. & S. 352.
The plaintiff has a prima fade case, and no fact is found by the judge which meets it as matter of law. Certain facts are reported, however, from which we are asked to infer that before 1890 the word “ Draper ” had become public property, and “ had acquired a generic meaning, descriptive of a general kind, quality, and class” of goods. Thomson v. Winchester, 19 Pick. 214, 216. Whether it has done so or not is a pure question of fact, and evidently was considered to be such in Thomson v. Winchester, where Chief Justice Shaw’s proposition is, that if the term “ Thomsonian Medicines ” had acquired such a meaning, the plaintiff, having no patent, had no exclusive right to call his medicines Thomsonian. See Burton v. Stratton, 12 Fed. Rep. 696, 701, 702. It is to be regretted that the judge who heard the evidence should not have found the fact one way or
If we interpret the foregoing facts correctly, they only show that, the name Draper having gained a certain commercial value as applied to oilers, there have been some attempts to steal a part of its reputation, and that those who were selling the genuine thing were glad to use a derivative name by implied' license from the Drapers, who alone had a right to it. It is
As Noera must be enjoined from the further use of the word Draper, either upon his goods or in the name under which he does business, the first bill becomes less important. It seeks to enjoin the Williams Company from receiving from the post office any mail addressed to the “ Draper Oiler Co.” So far as the right to the letters follows the right to use the name, the defendant is entitled to them, but we have no means of determining the right to the letters now in the hands of the postmaster. Probably that can be settled out of court, and as it seems from the report that Noera’s right to letters addressed to the Cambridge Manufacturing and Oiler Co. was admitted, we shall not attempt to dispose of the bill further than to deny the injunction.
On first bill injunction denied. On second bill decree for plaintiff.