Northcutt v. Turney

101 Ky. 314 | Ky. Ct. App. | 1897

CHIEF JUSTICE LEWIS

delivered the opinion op the court.

Appellees, Dan Turney and others, doing business under the firm name of Turney & Lindsey, and E. C. Hawkins and others, doing business under the firm name of E. C. Hawkins & Co., owners respectively of what are called and known as the Upper and the Lower Blue Lick Springs, in Nicholas county, Ky., brought this action jointly to enjoin appellant,, H. B. Northcutt, from using the words “Blue Lick” as a trade mark in connection with his advertisement and sale of' water from an artesian well in Campbell county or elsewhere; and, by the judgment appealed from, the temporary injunction granted for that purpose was in terms perpetuated by the lower court. It is substantially alleged and admitted that water from the two springs of appellees have been for a century known, sold, and used throughout the United States and many foreign countries as medicinal water, and also that they and those under whom they claim have, by long use and legal adoption, acquired exclusive right to the use of the words “Blue Lick” as their trade mark. Though Upper and Lower Blue Lick Springs are some distance apart,, and belong to two distinct firms, the water from them seems to be composed of the. same ingredients, and to posses® the same kind and combination of medicinal qualities. And, as the trade mark “Blue Lick Water” has been heretofore appropriately and legally adopted and used by each respective owner without objection of either, they have a common interest in preventing a third party from illegally appropriating and using it, and, consequently, have a rigM to jointly maintain this action. Appellant states in his answer that. lie and those who preceded him have been selling and shipping water from said artesion well for a period of at least 16 years; that for about one year of that time the trade mark •or brand used in the sale of said water was “The Campbell County Blue Lick Water,” and for about 15 years last past the trade mark or brand used by him and the former owners and proprietors in sale of said waters has been “Kentucky Blue Lick Water.” And the two defenses based upon this alleged statement of fact are: First, that appellees having knowledge thereof, and acquiescing in such use of the words “blue lick water” by appellant and his predecessors, is now estopped to deny their right or interfere with the exercise of it by them; second, that the action is barred by the statute of limitation.

That appellees acquired exclusive right to use as their trade mark the words “Blue Lick Water” is not only apparent from the facts stated in their petition, and conceded in the answer of appellant to be true, but has been definitely decided by this court in the case of Parkland Hills Blue Lick Water Co. v. Hawkins & Co., 16 Ky. Law Rep., 210. Such being the case, the use and attempted appropriation of the same words by the predecessors of appellant, in advertising and selling water from the artesian well, was manifestly illegal and fraudulent. And whatever money he may have •expended in purchase and improvement of the artesian well, with the purpose of using the same words as his trade mark in the sale of water therefrom, was done at his own risk, for no presumption of acquiescence by appellees in such wrongful appropriation of their property could arise, or ■estoppel of their right to restrain it could be created. In our opinion an action to enjoin the illegal appropriation and use of a trade mark is not excepted from, but, according to manifest legislative policy, subject to operation of the statute of limitation, and is controlled by section 2522 as follows: “An action for relief not provided for in this or some other chapter can only be commenced within ten years next after the cause of action accrued.” But that statute does not avail appellant as a defense, because he did not begin to appropriate and use the words in question as his trade mark in selling water from the artesian well until 1898, and, of course, the cause of this action against him did not until then accrue. It is true the answer contains the allegation, which, for the .purpose of trying the general demurrer, must be taken as true, that he and his predecessors had for the period of 15 years used the words “Kentucky Blue Lick Water” in connection with sale of water from the artesian well, but he does not allege they had so used the words under a claim of right, or that they either acquired or undertook , to convey to him a title to the trade mark. On the contrary, their appropriation and use of the trade mark being unlawful and fraudulent, it must be presumed whatever right they acquired thereto, if any, was abandoned when they transferred the well to appellant. And, as it was not conveyed or attempted to be conveyed to him, his use and attempted appropriation must be treated as illegal and fraudulent, and a distinct cause of action which accrued against him in favor of appellant in 1893, when he first commenced to so appropriate and use their trade mark.

Judgment affirmed.