50 Md. 591 | Md. | 1879
delivered the opinion of the Court.
This appeal is from an order granting an injunction restraining the appellant from publishing and circulating a certain almanac for the year 1879, known as “T. G. Robertson’s Hagerstown Almanack,” with the same emblems, devices, marks, representations, title and back outside pages, style, shape and general appearance as have characterized the publications of the same for previous years, and from printing, publishing and circulating any other almanac in colorable imitation of the almanac of the complainants, known as “J. Gruber’s Hagerstown Town and Country Almanack,” and calculated to deceive and impose
It is immaterial to the decision of the case, in the view we have taken of it, whether the devices, marks, pictures and words, in the manner in which they are collocated and combined upon the two outside pages of the complainants5 almanac, be regarded as a trade-mark proper or as wrappers or labels, or as the title or the particular external marks which an author or publisher affixes to his work to distinguish it, because the grounds of relief in equity are substantially the same in either case. A publisher or author has either in the title of his work or in the application of his name to the work, or in the particular marks which designate it, a species of property similar to that which a trader has in his trade-mark, and may like a trader claim the protection of a Court of equity against such a use or imitation of the name, marks or designations, as is likely in the opinion of the Court to be a cause of damage to him in respect of that property. Kerr on Injunctions, 478; Browne on the. Law of Trade-Marks, sec. 553. This doctrine, in cases where the facts are sufficient to sustain it, has been held applicable to such periodical publications as newspapers, magazines, and almanacs. Matsell vs. Flannagan, 2 Abb. Pr., 459; Hogg vs. Kirby, 8 Ves., 215; Spottiswoode vs. Clark, 10 Jurist, 1043. But here, as in cases of trade-marks proper, the complainants must show a property right in themselves, and a fraudulent or colorable imitation by the defendant, and we shall therefore proceed to consider whether these two essential requisites to relief in equity are made out by the hill and exhibits before us.
2nd. As to the property right. On this subject the authorities all declare that the right of property in the plaintiff must he clearly shown. Witthaus vs. Mattfeldt & Co., 44 Md., 803. From the averments of the hill, to which we are confined, it appears that about the year 1835, John Gruber, the ancestor of some of the complainants, commenced the publication of an almanac to which he gave the name of “ J. Gruber’s Hagerstown Town and Country Almanack,” and for the purpose of distinguishing it from all other publications of almanacs he adopted and made use of certain devices, emblems, representations, marks and pictures, which he combined and collocated in a manner entirely new and original, and these are the same as those now used on the almanac of the complainants. He continued this publication annually from 1835 to his death in 1858, and hy his skill in the order and arrangement of the calendar, and the variety of the miscellaneous matter inserted therein, he acquired the goodwill of the public and a large circulation for his almanac, and it was a source of profit and revenue to him during his life-time, and the emblems and devices before described became identified with his said publication and were the means hy which it was known and distinguished hy the trade. This, according to the averments of the bill, was the origin of the emblems and devices in which the complainants now cfaim a property right. In our opinion that right does not depend upon the derivation of a legal title from John G-rubér, either through his will, or hy the administration de bonis non c. t. a., taken out long after his death, for the purpose of obtaining title to, and distributing, as assets of his estate, these alleged trade-marlcs
3rd. It was suggested and contended in argument, that the averment that the complainants are credibly informed and verily believe, and therefore charge, that the defendant has printed, published and issued, or caused to he printed, published and issued, within the last few days, an edition
The order appealed from will therefore be affirmed; and in so doing we must be understood as intimating no opinion upon any other question than the one directly before us, viz., that the averments of the bill are sufficient to justify the granting of the injunction prayed for.
Order affirmed, and cause remanded.