75 Neb. 426 | Neb. | 1906
At and prior to the year 1897, the George Richardson Company was engaged, in the manufacture of men’s shoes at Dubuque, Iowa, and in May of that year the company began to brand or mark certain of its makes with the name of “Regent.” It subsequently sought to obtain the exclusive right to this term as a trade-mark, and to the .accomplishment of this end purchased a patent thereto from one Stephen E. Miller in the year 1900. After the purchase of the patent on this trade-mark, the Richard
It is next urged by counsel for appellant that the order of the court restraining plaintiff from selling Regent shoes to the W. S. Striker Company is wholly unauthorized under the evidence contained in the bill of exceptions. It appears from the testimony that this firm is engaged as retailers of boots and shoes on Sixteenth street in the city of Omaha, about two blocks from the place of business of cross-petitioners; that this firm is composed of persons, part of whom have been in the employ of the Williams Shoe Company, or the Richardson Company, prior to their consolidation into the incorporated company of plaintiff. The evidence shows that this firm advertised very prominently the sale at retail of Regent shoes; that the advertisements of this firm gave- prominence to the brand of shoes sold rather than to the name of the firm making the sales. It is also shoAvn that plaintiff had furnished this firm Avith advertising matter for its
It is finally contended by counsel for appellant that there is no equity in the bill of cross-petitioners because, in the promotion of their business and for the purpose of attracting the attention of the public, frauds were committed in their advertisements in representing to the public that defendants were the manufacturers and makers of the shoes that were sold by them. It was shown in the testimony that defendants’ advertising placards had contained, among other things, head-lines marked “Maker to Wearer,” and “Made by Us,” and “Manufactured and Sold by Regent Shoe Company,” and other similar expressions indicating that the goods sold by this firm were also manufactured by them, when in fact the cross-petitioners never were manufacturers of any of the goods which they offered for sale. There was, however, no testimony in the record to show that the public at large, or any customer of the defendants, had ever been deceived or induced to trade with the defendants because they believed the shoes sold from their store were actually manufactured by this firm.
It is an elementary principle that he that asks equity must come with clean hands, and, as well stated in Worden v. California Fig Syrup Co., 187 U. S. 516, “when the OAvner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential ■that the plaintiff should not in his trade-mark, or in his
It is, however, not every exaggerated puff of one’s own goods that is to be regarded as such a false representation as will deny relief in a court of equity; it is rather such materially- fraudulent statements as to the character, quality and make of the goods as tend, if untrue, to impose upon and deceive the purchaser. Such imposition might be made by representing the shoes sold by defendants to have been manufactured by some firm of known and established reputation, when they were not; or it might be by representing the wares to be of a material of which they were not made; but the mere fact of representing them as “made by us,” when they were made by some one else, as defendant claims, under their special order and direction, is not a misrepresentation of so grave a character as to deny defendants relief in a court of equity against an infringement of their trade name. Wormser v. Shayne, 111 Ill. App. 556.
We therefore conclude that the decree of the district court, in so far as it prohibited plaintiff from manufacturing and selling men’s boots, shoes and rubbers at wholesale under the name of “Regent Shoe Manufacturing Company,” and also in restraining it. from selling at wholesale to the firm of W. S. Striker Company, is not sustained by the law and the evidence, and we recommend that the judgment of the district court be reversed and the cause remanded, with directions to enter a decree permanently enjoining plaintiff from selling, or advertising to sell, men’s boots, shoes and rubbers at retail in the city of Omaha and immediate vicinity under the trade-name of “Regent Shoe Manufacturing Company.”
By the Court: For the reasons given in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded, with direc
Judgment accordingly.