85 F. 231 | 7th Cir. | 1898
(alten- stating the fads). We are content to affirm this de'cree upon the opiniou rendered in the court below,deeming it essential only to make a few observations in addition to the; views expressed by the; circuit judge-.
1. We are of opinion that neither the appellant nor any of his predecessors in the business in New York ever acquired lawful title; lo the use; of the word “Boyal” in conned ion with the manufacture; and stile of baking powde»r. The purpose of a trade-mark is to identify the origin or ownership of the; article to which it is attached. This is its primary object. Mill Co. v. Alcorn, 150 U. S, 463, 14 Sup. Ct. 151. Its. purpose; is to inform the publie: by what name1 the artie-.le is known, and whe-re and by whom manufactura! anel offered for sale. The label adopted by tin; appellant and his predecessors in New York possessed none of these ekarncteristics. It spoke a lie. It did not inelicate; (hat it was made by them, or either of them, e>r in the; eliy of New York. It stated that: the baking powder was prepared only by “Austin, Marshall, Hall & Co., Purveyors by Appointment lo Her Maje'siy, 381 Tottemham Court Bead, Loneíon, and New Cross, Surrey.” The label falsely purler fed to be; printed by “George Harwood & Co., 1’rinters, 402 Oxford Htroet.” It sought to convey the impression that the product was an imported article;, manufactured in London. It was adapted and intended to deceive the public. Under such circumstances, no right arises which the law will countenance;. Cemrts will not. lend their aid to protect imposition and falsehooel. Medicine Co. v. Wood, 108 U. S. 218, 2 Sup. Ct. 436.
2. Assuming that prope.rty could he acquired in such a false trademark, we are nevertheless pe-rsuaded that its inceptiesn and use; we're not prior to the adoption of the (rade-mark of the apjrelle;e and its predee-esserrs. It is incumbent upon the; appellant to establish such prior use1, at least salisfactorily. The; evidence produced upon the ejueslion of time is eemiiieting', evasive, anel almost valueless, resting largely upem the unreliable memories of ini crested witne'sses who contradict themselves at eveay turn. Thus, the; witness Crnmp, who printed the false label, sjroaking solely from ummorv, states (hat he first printed the label in I he fall of the ye;ar 1805; while in an affidavit made by him in June, 1872, fen- present tat iem in a suit in the; city of New York, he state's that it appeared by his day book that he delivered the; first lot of labels August 10,1807, and give-s from his hook the; precise dales* and number of labels furnished. This information from entries made at Hie time is more reliable than the uue-e'rfain memory. Upem a careful scrutiny of (he testimony, we; cannot doubt that the so-called “Boyal London Baking Powder” was not placed upon the; market until afterHu; 10lh day erf August, 1807.
3. The apjK'lIaut, after ahaneleming for nearly a quarter of a century the1 manufaelure1 and sale in the city of New York of baking powder, and the use of the fraudulent label, recommenced business in the city of Chicago in the year 18!)t, using labels which were clearly adapted anel intended to, and which clearly would, impose upon the public the article he made and sold as the article manufactured and sold by the appellee. This fraud was more bald and more; injurious than that he had previously indulged, for here there was not only imposition upon
4. The appellant claims that the word “Royal” of itself indicates quality, and cannot be adopted as a trade-mark or used as a trade-name; and, in support of this contention, reliance is placed upon the decision of this court in Beadleston v. Brewing Co., 46 U. S. App. 18, 20 C. C. A. 405, and 74 Fed. 229. That was a case of a trade-mark pure and simple, having no element of fraud or unfair trade. There the word “Imperial” was not in fact a part of the trade-mark, but was used to designate a particular grade or quality of beer. In obedience to the decision of the supreme court in Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, we held that this could not be done. That the words “Imperial” and “Royal” may import quality, and may be so used, we think, as we there said, must be true; but in the case before us the word is not so used, nor does it, in the connection in which it is used, indicate quality. It is applied to the entire manufacture of the appellant, and not to a particular grade, and has come to be known in connection with the article of baking powder as a word indicating the origin and the proprietorship of the manufacture: It would be inequitable in such case to say that a word which, under certain circumstances, may indi-, cate quality when used for that purpose, may be employed in no other sense; nor do the authorities sustain any such contention, especially when the objection is urged by one who is manifestly seeking to impose his wares upon the public as the manufacture of another. One may not use his own name for such a purpose; still less can he use the word in question. The decisions upon this point are so numerous that it is deemed unnecessary to collate them. The case of Reddaway v. Banham [1896] App. Cas. 214, is instructive, and fully disposes of the contention here. The other questions discussed are sufficiently considered in the opinion delivered in the court below. The decree will be affirmed.
