68 Cal. 68 | Cal. | 1885
— The complaint alleges that the plaintiff for more than thirteen years next preceding the commencement of this action has been, and still is, engaged in the manufacture and sale of a chocolate called and known as “German Sweet Chocolate,” — “the name of German being that of one Samuel German, who was on and before the 19th of June, 1867, employed, and who has ever since been and is now employed, by plaintiff in the manufacture of the said chocolate, and who on said 19th of June, 1867, for a valuable consideration, duly assigned and transferred to the plaintiff the exclusive right to use his, the said German’s, name upon the said chocolate so as aforesaid made and manufactured, and upon the labels and cases containing the same, and generally to use the said name of German as a trade-mark therefor”; that the chocolate has long been well and favorably known in the trade and to the public generally by the name of “German Sweet Chocolate,” and has been and is now
The plaintiff after giving evidence that for many years he has manufactured at Dorchester, Massachusetts, a chocolate under the name of “German Sweet Chocolate,” put up in the form and manner stated in the complaint, and sold throughout the country, testified as follows: “ I applied the name of ‘ German Sweet Chocolate ’ to that chocolate at Dorchester in 1866. I applied it because it was a good name, and I wished to place upon the market a new brand of sweet chocolate of improved manufacture. I got the name from Samuel German, and he authorized me to use it. In June, 1866, — about the time I commenced the manufacture, — I obtained it because I wanted to use his name, and I wanted his authority to use it. In the earlier years of the manufacture by me of ‘ German Sweet Chocolate,’ Samuel German was personally engaged in the manufacture of it, but owing to his advancing age and infirmities, he has been given lighter work to do since. The ‘ German Sweet Chocolate ’ has been sold and known to the trade under that name, and by the labels I have mentioned, since 1866. At the time I had adopted the name and those labels no other chocolate was sold or known to the trade under similar symbols, or under a name of which the word ‘German’ formed a part. I appropriated the name ‘ German Sweet Chocolate, made by S. German, Dorchester, Mass.,’ to my exclusive use, as a trade-mark for that chocolate, with the design, symbol, and device as appear by the labels I have mentioned, and I still claim the same, as I always have, as my trade-mark.”
The witness gave further testimony tending to show that he has ever since sold his chocolate extensively throughout the United States and received pecuniary profits therefrom, and that the chocolate sold by the defendants under the name of “Sweet German Chocolate”
A witness named Doyle testified on behalf of the plaintiff that he was in the employ of defendants as foreman at the time their label was gotten up, and had formerly been connected with a large house in New York that had the New York agency for Walter Baker & Co., of which firm the plaintiff was sole member, and that he was consulted by defendants in regard to the name to be put on their label; that defendant Guittard asked him what - Walter Baker & Co. called their chocolate, and he replied, “German Sweet Chocolate,” when Guittard said: “We will reverse it, and call ours Sweet German Chocolate.” This witness further testified: “ I had many conversations with Guittard about Baker’s chocolate before the one I have mentioned. The object of those consultations was to get at Baker’s customers, whom I knew, being connected with the house that was their Now York agent. That was the beginning of the consultations about Baker. He asked me who were the largest customers we had for Baker's goods in consultations we had, and I gave him the name of the large firms in Philadelphia, New York, Chicago, etc., to whom he sold his Sweet German Chocolate.”
Upon this state of facts, — which as the case is presented we must accept as true, — we are of opinion that it is not necessary to decide whether the plaintiff’s label with the accompanying words and devices constituted a trademark, and as such the exclusive property of the plaintiff, for the reason that it is a fraud on a person who has established a business for his goods and carries it on under a given name or with a particular mark, for some other person to assume the same name or mark, or the
That the unlawful purpose was deliberately designed and effectuated clearly appears from the testimony given at the trial. The motion for nonsuit should therefore have been denied.
Judgment and order reversed, and cause remanded for a new trial.
Myricic, J., Morrison, C. J., and McKee, J., concurred.
Rehearing denied.