104 Ky. 616 | Ky. Ct. App. | 1898
delivered the opinion oe the doubt.
The right of the appellees to the exclusive use of the words “Kentucky Comfort,” as a brand and trade-mark for their whiskies, is the question presented on this appeal. It appears that on March 26, 1883, the appellees, who were wholesale whisky dealers at Ft. Worth, Tex., procured, through the distillery concern of the Boldrick-Callaghan Company of Calvary, Ky., the design and brand in dispute, and the same was on that day branded into fifty barrels of whisky sold to appellees by the distilling company, and which were shipped to Ft. Worth, and received by appellees on April 10, 1883. Thereafter appellees pushed this brand of whisky, using as their trademark the words “Kentucky Comfort” in connection with the words “Casey & Swasey, Sole Proprietors.” Yearly since then the Kentucky Company has continued to furnish appellees with from eight hundred to one thousand barrels of whisky branded as indicated. On the other hand, it appears that the distilling concern of F. G. Paine & Co., of Louisville, Ky., the predecessors of the appellant, attempted to adopt the words “Kentucky Comfort” as a trade-mark for their whiskies as early as the fall of 1882, ’ and in fact sold some whisky under that name. They did not, however, at that date, actually brand the words on any barrels of whisky, or apply them directly in any form to their goods. One of the members of the firm did apply to one Jones, a designer of brands, and agreed to take the design and brand in question, but the time when he was to have the branding iron actually made was left open, and as to this time there seems to be some dispute. At any rate, after selling some whiskies under' that name, this firm did apply to Jones, about the 1st of April, 1883, for the iron, expecting to. get the brand they had contracted
There are many interesting details connected with the original selection of these words and the obtention of the brand, and its application to the goods of the appellees and appellant, to which we have not adverted. These facts would have been important ten years ago, in a contest between these parties for this trade-mark. The undisputed facts are, however, that, with the knowledge of both sides to this controversy, there have been two brands
The judgment is reversed, with directions to dismiss the petition.