197 F. 476 | E.D. Pa. | 1912
Circuit Judge. This action seeks to restrain the defendant from unfair competition in the sale of cigarettes, and also from the use of a trade-name averred to belong to the plaintiff.
In a word, I do not find in this record sufficient evidence to support the argument that the plaintiff’s trade-name of “Nubia” is telling an untruth, or is intended to deceive the public. I think it means no more than' I have already indicated, namely, that the package contains cigarettes of Turkish tobacco made by Charles B. Perkins in Boston. These are undoubtedly the facts, but for the purposes of this case I shall assume that such use of the name does not give the plaintiff an exclusive right thereto under any and all circumstances. I shall treat it as a geographical name, pure and simple, but even then I think the plaintiff’s right is superior. If the defendant were making cigarettes in Nubia, or were making cigarettes in the United States out of Nubian tobacco, it would have a right to call them “Nubias,” or any other similar name to indicate where they were made or where the tobacco was grown. But neither of these suppositions is true. The defendant’s business and the plaintiff’s business are in part exactly alike. They both manufacture cigarettes in the United States, not out of Nubian, but out of Turkish, tobacco, and I think no sufficient reason has been pointed out for allowing the defendant to use a name to which the plaintiff has acquired a prior right by prior and continuous use. Both parties are doing, the same thing, and are seeking to use the same name for the same purpose. Neither has the slightest connection with Nubia or with Egypt, except that both use Turkish tobacco. The dispute is between American manufacturers about the use of a trade-name which both happen to like, and (for all that is shown by the evidence) which both appear to have chosen, and to be using, innocently enough. It seems to he a situation where a court may properly apply the maxim, “Prior in tempore, potior in jure.”
The plaintiff is entitled to a decree against Appollo Bros., Incorporated, in accordance with this opinion.