Rogers & Brother v. Rogers, 53 Conn. 121

Rogers & Brother v. Rogers

53 Conn. 121 | Conn. | 1885

Lead Opinion

Stoddard, J.

As we understand the finding and rulings of the Superior Court, practically the only question left for the determination of this court is in respect to the plaintiff’s exclusive right, as against these defendants, to stamp *147the word “ Rogers ” upon silver-plated flat ware, such as knives, forks, spoons, etc. In considering this subject it must constantly be borne in mind that all questions of fact are finally disposed of by the Superior Court, and that this court cannot, even by inference, supplement such finding, or supply omitted facts. Under our practice this court is controlled by the finding as it comes to us. The case stands upon an answer denying the material allegations of the complaint, and in so far as the Superior Court omitted to find true the allegations and claims of the plaintiff, those allegations and claims must be regarded as not proved.

The defendants stamped upon the shanks of spoons and forks manufactured by them the combination of words “ C. Rogers & Bros. Al.” The plaintiffs’ stamp is “ * Rogers & Bro. Al.” The finding states in detail the use by several different partnerships or corporations of stamps all bearing the common and distinctive word “ Rogers,” and differing from each other in all other material respects except in the use of this common and conspicuous word “ Rogers,” one concern using a stamp with the word “ Rogers ” alone. The finding then proceeds: “ By reason of the numerous stamps on spoons, forks and knives, containing the word ‘Rogers,’ as before mentioned, and of the efforts of the various concerns who have used such stamps since 1847 to promote the sale of their goods as ‘ Rogers goods,’ the word ‘ Rogers ’ has become the conspicuous and familiar part of such stamps with a large class of retail buyers; and while jobbers and dealers, and those retail buyers who are informed of the facts, readily distinguish between the stamps of the different manufactories by the word or symbols which such stamps do not possess in common, those retail buyers of the articles who buy by the stamps or the single article look only to the word ‘ Rogers,’ and are for this reason liable to confound the various stamps; but generally the retail buyers who desire any information on the subject of the make of the goods, rely upon the dealer for such information.”

It appears from the extract that there are two governing *148facts:—1st, that the word “ Rogers ” is the conspicuous, familiar, material and valuable thing in the various so-called trade-marks; 2d, that the stamp of the defendants is liable to be mistaken for that of the plaintiffs because of the use of the word “ Rogers,” and by that limited class alone who look only to the word “Rogers.” And again the case states :—“ Between the stamps so used by the defendants and the stamps used by the plaintiffs upon similar articles manufactured by them respectively, the dealers and jobbers in such articles have no difficulty in distinguishing. And this is also true of those retail buyers who look beyond the word ‘ Rogers.’ But those who regard the word ‘ Rogers ’ only would be liable to confound one with the other, as is the case of the various ‘ Rogers ’ stamps before mentioned. Retail buyers sufficiently acquainted with the various ‘ Rogers ’ stamps in the market to distinguish between the same would have no difficulty in distinguishing between the two stamps of the plaintiffs and defendants; but the general resemblance between the two stamps is such that a person knowing that of the plaintiffs and not knowing that of the defendants might, upon referring to it, but not reading it attentively, mistake it for that of the plaintiffs.” Thus, with reiteration the court below emphasizes the fact that the word “Rogers ” is the controlling word—the one thing that is the basis of all possible confusion or mistake in the use of the two stamps.

There is no finding nor suggestion of fact that any other part of the defendants’ stamp is answerable in any degree for that liability to mistake. If any other part of the stamp, in configuration, collocation, or combination of words, figures or symbols, or in other respect, contributed in any manner to deceive possible purchasers and enable the defendants to sell their goods as those of the plaintiffs, it should so have been found by the trial court. This court cannot find such facts from an inspection of the stamp itself. This is not a case where this court can pronounce as matter of law that the defendants’ stamp in other particulars so resembles that of the plaintiffs as to amount to a represen*149tation that the goods are the plaintiffs’ goods. In this particular the case at bar differs from many of the cases cited in the briefs of counsel. In some of the English eases relied upon, and in other instances, the court determined from the evidence in the particular case whether the stamp was of objectionable character, thus exercising a combined jurisdiction over fact and law. In our courts, as before stated, these jurisdictions are separated, the fact being committed to the Superior Court, and the law to this court.

It is said that this stamp, “ C. Rogers & Bros. Al,” is “ stamped upon the backs of the shanks of the spoons and forks in the same manner and place as the plaintiffs’ goods are and have been stamped.” This is undoubtedly an evidential fact, from which the trial court might, in connection with other circumstances, have found a liability to deceive, on account of the location and peculiar characteristic of the defendants’stamps, but the court has not so found; presumptively the evidence did not warrant that conclusion; and, on the contrary, the court repeatedly tells us that the word “ Rogers ” alone is the only possible misleading character. And further, we are informed that “ the method of stamping their name upon such articles manufactured by them, and the locality of the stamp upon the article, has been that commonly employed by manufacturers of such silver-plated articles for many years. The mark ‘ Al ’ has been frequently used by manufacturers of such ware for many years as a mark of quality, and is so regarded in the trade.” Manifestly upon this condition of facts, in the absence of a finding that the location of the stamp, combining with its form, might have a misleading effect, we cannot say as matter of law that it does have that possible effect, particularly in view of this finding, that the location of the stamp is common to the trade, and the addition of the marks of quality,. “ Al,” is commonly used by manufacturers as a quality mark. We feel constrained by the facts in the case to say that there is no foundation laid for the claim that we should rule as matter of law that the judgment of the Superior Court is erroneous, so far as that *150judgment relates to the stamp in question in other respects than the use of the word “ Rogers.”

This appeal raises the question of error or no error upon the facts found, and “ when, therefore, on such appeal, the record omits to present facts essential to the case of the appellant, this court can simply affirm the judgment, and cannot remand the case to the lower court for amendment, or a further hearing or finding.” Schlesinger v. Chapman, 52 Conn., 273.

Have these plaintiffs, as against these defendants, an exclusive right to the use, in their stamp, of the word “Rogers ” ? Upon this branch of the case there is one further fact stated as follows: “ The purpose of the defendants in stamping their firm name upon the spoons, forks and knives so manufactured by them, has been to indicate to the public that they are the manufacturers of the goods so stamped. But the defendants, in commencing the manufacture of such articles, had in view the popularity in the market of such goods bearing a stamp containing the word ‘Rogers,’ and an inducement to commencing such manufacture was the advantage they might derive from having their goods so stamped.” And then the court finds: “ The allegations of fraudulent design and acts on their [the defendants’] part, contained in articles 11, 12, 13, 14, 15 and 16 of the complaint, are found to be not true.” The 11th article contains an allegation that the defendants, “ with intent to defraud ” the plaintiffs, sent their goods into the market with marks closely resembling the claimed trade-marks of the plaintiff. By article 12 it is stated that by the external shape and appearance of the goods, together with the stamp and mode of selling, the defendants caused their goods to resemble the plaintiffs’. Article 13 contains an allegation that the defendants’ stamp is a close imitation of the plaintiffs’, and is an infringement of their trade-mark, and is well calculated to mislead and deceive, and does deceive purchasers, and induces them to buy the defendants’ goods supposing them to be of the plaintiffs’ manufacture. Article 14 alleges that the defendants’ goods will become known *151as “ Rogers ” goods, and that thereby purchasers will be led to buy the defendants’ goods believing them to be the plaintiffs’; and by article 15 it is alleged that the defendants fraudulently stamp the word “ Rogers ” on their goods, intending it to operate as a fraud upon the public, upon unwary purchasers, and upon the plaintiffs, in the ways above set forth, etc. So far the trial court has wholly negated the claim of the plaintiffs that the defendants were actually fraudulent in the use of their stamp, and that such stamp was intentionally used to personate the plaintiffs’ goods, notwithstanding the finding that the defendants had in view the popularity of goods marked “ Rogers,” and that one inducement was the advantage they might derive from so stamping their goods. But in saying that the allegations of fraudulent design and acts on their part, contained in article 16 of the complaint, are found to be not true, the trial court goes further than to deny the assertion of active, personal, intentional, fraudulent design and counterfeiting, and negatives the constructive fraudulent design implied in the statement contained in that article.

Article 16 is as follows:—“ That by reason of the facts aforesaid the use of the word ‘ Rogers,’ either as the whole or a part of their stamp upon spoons, forks and knives, must and will, under the fixed circumstances inevitably connected with such use, necessarily infringe upon the plaintiffs’ lawful enjoyment of the use and benefit of their trademarks aforesaid, and must and will induce and cause unwary purchasers and others to purchase the spoons, forks and knives of the defendants, stamped with the word 6 Rogers,’ either as the whole or as a part of their stamp, in place of, and supposing them to be, spoons, forks and knives manufactured by the plaintiffs, to the great injury of the plaintiffs and in fraud of their rights.” In this article there is no statement of active fraud, or intentionally misrepresenting the defendants’ goods to be those of the plaintiffs, but only a statement that inevitably any use, no matter how honest and customary, of the word “ Rogers ” in the stamp, will induce and cause unwary purchasers to purchase goods *152of the defendants’ make, supposing them to be the plaintiffs’, and therefore any use of the word “ Rogers ” in such stamp by the defendants is thus constructively fraudulent. This conclusion and assertion of the plaintiffs, so stated, is denied by the trial court. The plaintiffs’ case is stripped, by the finding, of every fact collateral or additional to the mere use of the word “ Rogers ” in the stamp.

The plaintiffs’ claim, as thus stated, is surely not warranted by any decided case or the authority of any test-writer brought to our attention. Substantially all the leading and governing facts and characteristics of the recent English case of Massam v. Thorley's Cattle Food Co., L. R., 14 Ch. Div., 748, a case that is largely relied upon by the plaintiffs, are eliminated from the plaintiffs’ case. A few citations from the several opinions in that case will indicate how fundamentally different it was from the case with which we are dealing. And it should be borne in mind that this English court was considering questions of fact upon the evidence in the case. Page 755 : “ ‘ Thorley's Wood for Cattle' meant that food which for many years was manufactured at works belonging to Joseph Thorley, and afterwards was manufactured by his executors carrying on his business at the same works.” Page 456 : “We have heard nothing like a satisfactory explanation of how J. W. Thorley’s company came into existence, unless it was that the promoters thought that Thorley’s food was a very profitable thing, and had got a great reputation, and that they should like to steal the reputation which it had acquired. In order to do that they somehow or other got into communication with a brother of the late Joseph Thorley, who for some years had been in the service of Joseph Thorley, and during those years, according to his own account, which I take to be true, had acquired a knowledge of the recipe and of the manufacture, but who, for several years previous to the existence of this company, had never had anything to do with the manufacture of food for cattle. Having the name of Thorley, which was the distinguishing mark of the food for cattle, he either tendered himself for sale, or was found for pur*153chase by some persons, in order that his name might be got into a joint stock company formed for the sake of selling these goods. Why was that name got in there except for the purpose of inducing the world to believe that it was the same concern, or that it was the same Thorley, or a continuation of the same Thorley, whose name was the principal characteristic of the name of the article? The name of the company is, to my mind, a fiction. The meaning which the name of ‘ J. W. Thorley & Co., Limited ’ would convey to any person’s mind, is that there had been a partnership of J. W. Thorley & Co., a real partnership, which had been carrying on business in the manufacture of this food for cattle, and that for some reason or other, such as we have seen constantly in our experience in this court, the partnership had been minded to convert itself into a limited company for the more convenient transaction of its business......I am, therefore, of opinion that in this case what the defendant company have done has been calculated to deceive, and I am bound to say, in my judgment, I have no doubt was from the first intended to deceive the persons purchasing their article into the belief that they were purchasing the article which Joseph Thorley had formerly manufactured at the works which had attained the great reputation which Thorley’s manufacture appears to have obtained.” Baggallay, L. J., said:—“ I do not profess to say now whether J. W. Thorley, if honestly carrying on business on his own account in the manufacture and sale of this article, might not call it ‘ Thoiiey’s Food for Cattle,’ provided he took proper precautions to prevent it being supposed that the article he was so manufacturing was manufactured by the representatives of Joseph Thorley, but I feel satisfied that the company has no right whatever to use that name. I am strongly inclined to the opinion, though it is unnecessary to decide, that according to the view of Lord Westbbry in the Glenfield Starch case, the expression ‘ Thoiiey’s Food for Cattle ’ indicates the trade denomination of the article manufactured by the particular person, but even on the assumption that the defendant company *154had not only the right to manufacture this article but to call it ‘Thorley’s Food for Cattle,’ I have come to the conclusion on the evidence that they adopted such a mode of endeavoring to push that article in the market as to induce many persons to entertain the reasonable belief that the article they were so putting upon the market had been manufactured by the representatives of Joseph Thorley.” Bramwell, L. J., said:—“ The complaint of the plaintiffs is not that the defendants made and sold the same article that the plaintiffs make, but that it was sold in such a way as to induce purchasers to believe that it was the article manufactured by the establishment which was Joseph Thorley’s, and now is carried on by his executors. The learned counsel for the defendants'admit that, if that is so, there is a cause of action against them, and that they must be restrained from doing it. The question, therefore, is one of fact—was the trade so carried on by the defendants as to give rise to that belief? It appears to me almost impossible to entertain a doubt upon that question.” James, L. J., finally announced that an injunction would issue, and Mr. Glasse, who was of counsel, said :—“ But is it not the substance of your Lordship's judgment that they are not to use the word Thorley in connection with their cattle food?” James, L. J.:—“We cannot prohibit their using the name if they use it in a way not calculated to mislead the public.”

Quotations are made at such length from this case because of the importance apparently attached to it by the plaintiffs. It'will be seen that the case was regarded as one where a joint stock company had assumed the name of “ Thorley ” with the preconceived design of inducing the public to believe that their manufacture was that of the plaintiffs, with the intent to pirate the marks of origin of the plaintiffs’ goods. In this view the English case goes no further than this court in Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manf. Co., 37 Conn., 278. Further, as indicated by their opinions, the judges strongly leaned to the position that “ Thorley’s Food for Cattle ” had, under the evidence in the case, come to indicate the *155trade denomination of the article manufactured by the particular person, and had obtained that secondary meaning wholly apart from its ordinary and apparent meaning, assimilating it, in this particular, to the “ Glenfield Starch” case in Wotherspoon v. Currie, L. R., 5 H. L. Cas., 508. Lastly, the English case, as the final and determinate View of the case, was treated as a case of intentional false representation by the defendants, in their method of advertisement by labels, and method of packing goods and carrying on their business. This is shown by the refusal of the court to enjoin the use of the word “Thorley ” absolutely in the cattle food business, and permitting its use so long as that use was not calculated to mislead. The rationale of the decision of Massam v. Thorley's Cattle Food Co. is that it was a case of actual intentional misrepresentation. The scope and limit of the ruling in that case, in regard to the use of the name “ Thorley,” is fixed by the decision of the same court in Thorley's Cattle Food Co. v. Massam, in which the court protected by injunction the “ Thorley’s Cattle Food Company ” in the prosecution of its business in that name against circulars and advertisements of the defendants, the executors of Joseph Thorley. Both James and Baggallay, L. Js., in the latter case, refer approvingly, and as containing the gist of the law, to the language of Lord Justice Turner in Burgess v. Burgess, 3 DeGex, M. & G., 896, as follows:—“No man can have any right to represent his goods as the goods of another person; but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. When a person is selling goods under a particular name, and another person, not having that name, is using it, it may be presumed that he so uses it to represent the goods sold by himself as the goods of the person whose name he uses. But when the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case, whether there is false representation or not.”

*156Considered in the ordinary course of trade, it is a contradiction of terms to say that a man selling goods under his own name sells them as the goods of another, even if that other have the same name. The cases seem to require some element of false representation other than that implied in the fair, honest and ordinary use of a person’s own name.

An examination of the following and kindred eases wherein the use of a person’s name has been regulated, will show that in most instances conscious, intentional fraudulent misrepresentation on the part of the defendant had been resorted to; in others, there was such a combined use of the name with other marks, characters, figures, or form and arrangement of circulars, advertisements, etc., as to amount to a false representation, and the combination only was enjoined. No instance can be found where the use of the .name only, in good faith, has been stopped. See Croft v. Day, 7 Beavan, 84; Holloway v. Holloway, 13 Beavan, 213; Clark v. Clark, 25 Barb., 78; Sykes v. Sykes, 3 Barn. & Cress., 541; Metzler v. Wood, L. R., 8 Ch. Div., 608, 610; Fullwood v. Fullwood, L. R., 9 Ch. Div., 179; Devlin v. Devlin, 69 N. York, 214; Landreth v. Landreth, 22 Fed. Rep., 41; Shaver v. Shaver, 54 Iowa, 213 ; Stonebraker v. Stonebraker, 33 Md., 268; Williams v. Brooks, 50 Conn., 278; Meriden Britannia Co. v. Parker, 39 Conn., 450.

Upon the other hand there has been, from the first to the present time, a general consensus of judicial opinion that the use of a personal name in a fair, honest and ordinary business manner, could not be prevented, even if damage resulted therefrom. Croft v. Day, 7 Beavan, 84; Holloway v. Holloway, 13 id., 213 ; Burgess v. Burgess, 3 De Gex, M. & G., 896.; Faber v. Faber, 49 Barb., 357 ; Clark v. Clark, 25 id., 80; Meneeley v. Meneeley, 62 N. York, 427; Comstock v. Moore, 18 How. Pr., 424; Gilman v. Hunnewell, 122 Mass., 139 ; McLean v. Fleming, 96 U. S. Reps., 252; Carmichel v. Latimer, 11 R. Isl., 395 ; Landreth v. Landreth, 22 Fed. Rep., 41; Singer Manf. Co. v. Long, L. R., 18 Ch. Div., 412. Other cases and dicta might be cited; but it is deemed unnecessary.

*157In one brief filed for the plaintiffs it is said that they make no exclusive claim to the word “ Rogers; ” but there is coupled with that disclaimer a statement that the word “ Rogers ” is the conspicuous and valuable part of their mark, and that any use of it by the defendants, in the ordinary way of manufacturers, by stamping their goods with it, either alone or in any combination, will indubitably produce results which they are now striving to prevent'; and in another brief filed by other counsel of the plaintiffs the broad claim is made that the word “ Rogers ” used as a stamp should be stopped. And, as we have before said, this is the only contention left to the plaintiffs by the finding of the court below.

In conclusion, we think there is neither authority nor reason in support of the doctrine that the fair, honest use of a name can be enjoined when it is used in the ordinary course of business, in the way and manner in which other manufacturers of similar goods are accustomed to use their own name in the preparation for sale, or sale, of goods; that such a rule would operate in restraint of trade, and prohibit a person from using the ordinary means that all are entitled to use in the prosecution of business enterprises ; that such use contains no element of false representation or personation in any just and true sense, and that, while it may be true that a possibility exists that the goods of one will be purchased to some extent by persons who either know no distinction, or even by the occasional few who suppose them to be the goods of another, this condition of things is inevitable in trade and commerce, inhering in the nature of things, and attaches- in kind, if not in degree, in all cases where a manufacturer sends goods of any particular description, but without distinguishing mark, into a district or country where such goods were before that time unknown, and establishing a reputation in that district or country as the manufacturer and vendor of such goods. Any new comer in the same district with similar goods would undoubtedly profit by the reputation of the former’s goods; yet the benefit to the public generally of free com*158petition, and the natural rights of all to seek any and all markets, would render ineffectual all attempts to shut out such new comer.

Since the preparation of the foregoing opinion the second edition of “ Browne on Trade-Marks ” has been distributed. That author, upon a review of the cases, lays down this proposition :—“ A manufacturer has a right to affix his own name- to an article of his own production. And any injury which another manufacturer, having the same surname, may’ suffer in consequence thereof, is damnum absque injuria.” Sec. 420. And in his commentary upon Howe v. Howe Machine Co., 50 Barb., 236, he says :—“ This case is apt to mislead the superficial observer, and even for a moment stagger the preconceived notions of one used to critical examination. It has been cited more than once in support of this absurd proposition, to wit: that when two men in the same trade have the same surname, one may employ that surname as a trade-mark, to the exclusion of any such right by the other; that is, when two brothers have made and sold sewing machines, the one who first stamped his surname upon a machine was the sole possessor of the right to stamp his workmanship with his true name. This conclusion has no warrant from any authoritative source.” Sec. 423.

There is no error in the judgment of the Superior Court.

In this opinion Carpenter and Granger, Js., concurred.

Dissenting Opinion

Loomis, J.

The able argument in support of the majority opinion is so well calculated to produce the impression that the finding of the Superior Court leaves no possible basis for granting any relief to the plaintiff, that it will be necessary to examine the pleadings and finding somewhat carefully, to show the grounds for my dissent. If we exclude from paragraphs eleven to sixteen of the complaint all allegations of fraudulent designs and acts, there will remain the averments that the plaintiff is a corporation duly *159organized under the laws of this state, and that since 1859 it has been and now is extensively engaged in the manufacture of silver-plated spoons, forks and knives, and has large capital invested in that business; that in 1858 Asa H. and Simeon S. Rogers formed a partnership under the name of “Rogers & Brother,” and engaged in the business of manufacturing and selling silver-plated spoons and forks and knives, which was continued till December 18th, 1859, when the plaintiff corporation was organized and purchased the property, and succeeded to the business and all the rights of the partnership, that said partnership had adopted and used in its business the trade-mark “ * Rogers & Bro.” sometimes adding the suffix “Al”—stamping it upon the goods manufactured by said firm, and that the plaintiff upon succeeding to the business of said partnership, lawfully continued to use, and has ever since lawfully used, and intends in the future to use in its business said trade-mark with said suffix, stamping the same upon the spoons, forks and knives manufactured by it; that the sale of the plaintiff’s goods so stamped has been widely extended, and that owing to the skill and integrity'of the plaintiff in their manufacture they have constantly maintained a special, peculiar, good and valuable reputation among the trade and among purchasers generally, and that the business of the plaintiff has been largely built up and extended by such reputation, and is now largely dependent for its profitable continuance upon the reputation so attached to its goods by the use of such stamp thereon; that said trade-mark is of great value to the plaintiff and will continue to be so if the wrongful acts of the defendants shall be stopped] that the defendants, well knowing the premises, and knowing that if they could send spoons, forks and knives into market bearing a stamp that would cause them to be called “ Rogers goods” or by any of the names whereof the word “Rogers” is the specially conspicuous part, they could sell them much more readily and for a higher price than if the stamp did not contain the word “ Rogers; ” and intending to cause their goods to be called by some name of which the word *160“Rogers” forms the conspicuous part and so obtain advantage of the reputation which attaches to goods bearing the plaintiff’s trade-mark “ * Rogers & Bro. A1,” did, on or about the 15th day of June, 1883, begin the business of making and selling silver-plated spoons, forks and knives, and stamping upon them marks resembling said trade-marks of the plaintiff, and in particular the following, to wit: “ C. Rogers & Bros. Al,” and to send into the market and sell spoons, forks and knives so stamped, and have ever since continued so to do; that by reason of said facts the use by the defendants of the word “ Rogers ” as a stamp upon spoons, forks and knives will cause unwary purchasers to purchase the goods of the defendants so stamped, supposing them to be manufactured by the plaintiff, to the injury of the plaintiff; and that the plaintiff, on August 1st, 1883, requested the defendants to cease using the stamp aforesaid, but they then refused and still refuse.

Of the material allegations stated above the defendants admit that in 1858 Asa H. and Simeon S. Rogers formed a partnership under the name of “ Rogers & Brother,” and under that name engaged in the manufacture of silver-plated ware; that in 1859 the plaintiff corporation was organized under the name of “ Rogers & Brother,” purchased the property of the copartnership and succeeded to its business and has ever since been engaged in the manufacture of silver-plated spoons, forks and knives, and has a large amount of capital engaged in the business; and that the partnership “Rogers & Brother” during its existence stamped the goods of its manufacture with the name of said copartnership, either in full or in the abbreviated form of “Rogers & Bro.,” and that the plaintiff corporation has, since it engaged in the business, stamped the goods of its manufacture with its corporate name, either in full or abbreviated, and that said copartnership and corporation sometimes added to their mark “ Al.” They also admit the use of the star, and that the plaintiff’s goods while so stamped have had a good and valuable reputation in the public markets.

The defendants aver that they have been extensively *161engaged in business as manufacturers and sellers under their partnership name of “C. Rogers & Bros.” since 1866 ; their manufacture being principally that of silver-plated coffin trimmings; and that in that business their partnership name has acquired a high reputation and been of great value to them. And in reply to paragraphs eleven to sixteen of the complaint, they aver that they have been engaged in and are intending to carry on, in connection with their other silver-plated manufacture, the manufacture and sale of electro-silver-plated spoons, forks and knives, and have made a large investment therein, and that they have stamped upon the articles so manufactured their partnership name for the sole purpose of indicating that such articles are manufactured by them, and of availing themselves of the reputation which they (the defendants) have acquired in the public markets as before-mentioned.

This the defendants insist that they have a lawful right to do, and that the doing thereof can afford no lawful ground of complaint to the plaintiff.

The court finds (among other things) that when the plaintiff corporation was formed in 1859, both members of the partnership formed in 1858 (Asa H. and Simeon S. Rogers) were associates in such formation, and became stockholders and officers in such corporation, and that the corporation so formed “ acquired by purchase all the property and business of said firm, including its said stamp and good will, and has ever since used said stamp in its business, always stamping the same upon the back of the shank of the forks and spoons, and that the use of said stamp was never .objected to by any of said brothers; that the goods made by the plain tiff,, and stamped as aforesaid, have always been equal to or better than the goods made by said three' Rogers brothers, and have always had a high reputation in the market; that the standard of quality has not only been maintained, but the amount of silver put upon the goods has been increased from time to time, and the quantity of silver now used by the plaintiff is twenty-five per cent, in excess of that used by Rogers Brothers; that the plaintiff has also from time *162to time made improvements in the style and workmanship of the goods and has greatly improved the quality of its spoons by thickening the shanks; that the reputation of the plaintiffs goods is very much higher than was that of the goods made by said partnership; and that the plaintiffs knives, forks and spoons are of a quality much superior to those made by said partnership or by any other party prior to the organization of the plaintiff; that said stamp of the plaintiff has never been used except upon first quality goods, and the use of the same has been and is of great value to the plaintiff; that prior to the acts' complained of the spoons knives and forks dealt in by the defendants were wholly of the manufacture of other parties than themselves, except as they were at one time connected with Chas. Parker, under an arrangement which appears in the case of Meriden Britannia Company v. Parker, 39 Conn. Reps., 450; that the defendants have never stamped any of their goods with any mark, name or trade-mark except as the spoons, forks and knives made by them recently have been stamped as herein stated; and that their stamp “C. Rogers & Bros. Al” is stamped upon the backs of the spoons and forks in the same manner and place as the plaintiffs goods are and have been stamped.

The majority of the court, in their opinion, after referring to various uses of the name “Rogers ” by one or other of the brothers, most of which have been abandoned for many years and which do not seem to have any material bearing upon any question in tins case, say:—“ Thus with reiteration the court below emphasizes the fact that the word ‘ Rogers ’ is the controlling word, the one thing that is the basis of all possible confusion or mistake in the use of the two stamps. * * * There is no finding or suggestion of fact that any other part of the defendants’ stamp is answerable in any degree for that liability to mistake. * * * If any other part of the stamp, in configuration, collocation, or combination of words, figures or symbols, or in any other respect, contributed in • any manner to deceive possible purchasers and enable the defendants to sell their *163goods as those of the plaintiff, it should so have been found by the trial court.”

To this construction of the finding, that confines the resemblance between the stamps entirely to the word “ Rogers,” excluding every other possible misleading similarity, I do not assent, because it entirely ignores the distinct finding that “ the general resemblance between the stamps is such that a person knowing that of the plaintiff and not knowing that of the defendants might, upon referring to it, but not reading it attentively, mistake it for that of the plaintiff.” This finding, and the construction I give it, are both emphasized by the fact that the trial court made the exhibits a part of the finding to be submitted for inspection and comparison by the judges of this court, surely not for the futile and foolish purpose of enabling us to see that the word “ Rogers ” in one stamp was like the word “ Rogers ” in the other, but that we might see how striking was the resemblance between the two stamps in their entirety, “'^Rogers & Bro. Al,” and “0. Rogers & Bros. A1,” as actually impressed upon the metal in characters identical in style, size and space occupied,—making the closeness of the resemblance and the probable effect in misleading purchasers more apparent than would appear from any mere verbal description.

In order to illustrate the use and benefit of exhibits in questions of this kind, it may be allowable to compare the impression actually made by the star prefix of the plaintiff’s stamp with the “ C.” of the defendants’ stamp. As they appear on the printed page, nothing could well be more dissimilar, and yet such is not the fact as seen in the exhibits, for both consist of very small circular indentations in the metal, and owing to the small size the distinguishing points are obscure, so that as addressed to the eye upon casual or ordinary examination there is great similarity, even where we would not expect to find it.

But it is not my purpose to supplement the finding by adding my own inferences of fact. The exhibits, however, *164being legitimately before us as a part of tbe case, it was our duty to examine them.

For the purposes of this discussion, however, I have no occasion to use the exhibits for any other purpose than to aid the interpretation and to make more clear the purpose and meaning of that part of the finding, which in'a measure seems to have escaped the attention of the majority of the court, notwithstanding the great thoroughness and ability of their argument. That the plaintiff has a good and very valuable trade-mark is beyond all question. As a property right it is as sacred as any other. The stamp adopted by the defendants to some extent operates to personate the plaintiff’s and to mislead at least incautious and unwary purchasers. So that-profits of right belonging to the plaintiff may fall into the hands of the defendants to whom they do not belong. For such a state of things there ought to be a remedy, and I think there is one founded upon the authority of numerous decisions, some of which were referred to by this court, with approval, in the late cases of Williams v. Brooks, 50 Conn., 278, and Meriden Britannia Co. v. Parker, 39 Conn., 450.

In Williams v. Brooks this court, remarking upon the finding that those liable to be deceived “ were only careless and unwary purchasers,” says (p. 283:)—The purpose to be effected by this proceeding is not primarily to protect the consumer but to secure to the plaintiffs the profit to be derived from the sale of hair-pins of their manufacture to all-who desire and intend to purchase them. It is a matter of common knowledge that many persons are in a greater or less degree careless and unwary in the matter of purchasing articles for their own use; but their patronage is not for that reason less profitable to the manufacturer; and when such persons have knowledge of the good qualities of the plaintiffs’ hair-pins, and desire to purchase them, the law will not permit the defendants to mislead them.” The court then quotes the following from the opinion of the court in Singer v. Wilson, L. R., 3 App. Cases, 376:— “ There are multitudes who are ignorant and unwary, and *165fcliey should be regarded in considering the interests of traders who may be injured by their mistakes. If one man will use a name the use of which has been validly appropriated by another, he ought to use it under such circumstances and with such sufficient precaution that the reasonable probability of error should be avoided, notwithstanding the want of care and caution which is so commonly exhibited in the course of human affairs.”

In Meriden Britannia Co. v. Parker it was found “ that the stamp of the defendant, ‘ C. Rogers & Bros. A1,’ resembled the petitioners’ trade-mark ‘1847 Rogers Bros. A1,’ to that degree that it was calculated to deceive unwary purchasers and those who buy such goods hastily and with but little examination of the trade-mark; but purchasers who read the entire trade-mark on the respondent’s goods and who know the petitioners’ trade-mark cannot be deceived, nor can they mistake the respondent’s goods for those of the petitioners.” 39 Conn. 455.

Upon the finding in that ease the court remarked that “ the fact that careful buyers, who scrutinize trade-marks closely, are not deceived, does not materially affect the question. It only shows that the injury is less, not that there is no injury.” Id. 460.

But if the resemblance be found sufficient to mislead, as in the Parker case, it is still contended that as the defendants here only use their own partnership name, they may, upon the pleadings and finding in this case, lawfully appropriate to themselves the entire advantage which, in that case, was to be divided between themselves and Parker, and that this plaintiff must continue to suffer, without relief, all the damage from which the plaintiffs in that case were protected by injunction.

But in deciding this question of infringement the only difference between the case of one who uses a name, not his own, as a stamp, and one who uses his own name, is that, in favor of the owner of the stamp claimed to have been imitated and infringed, the former is presumed to *166use it for a fraudulent purpose, while, as to the latter, such purpose must be proved.

Here it is found that “ the defendants, in commencing the manufacture of such articles, had in view the popularity in the market of such goods bearing a stamp containing the word Rogers, and one inducement to commencing such manufacture was the advantage they might derive from having their goods so stamped.”

This is clearly sufficient for the plaintiff, unless the fact that such “ popularity ” was not the sole property of the plaintiff prevents the maintenance of this suit without joinder as co-plaintiffs of the other parties interested in the reputation and popularity which the defendants intended to appropriate.

That question arose in the case of The William Rogers Manufacturing Co. v. The Rogers & Spurr Manufacturing Co., and was then disposed of by Judge Lowell as follows: “ It is further argued that the Rogerses are so many that the court cannot find any intent to appropriate the reputation of one of them more than another, and that if any suit will lie it must be by all those who use any trade-mark whose distinctive feature is the name ‘ Rogers.’ I believe it to be true that the Greenfield Rogerses did not inquire, nor did the defendants care, whose reputation they were making available; but I am of opinion that any' one of those who rightly use the name may enjoin the interfering use by others.” 11 Fed. Reporter, 500.

'That the plaintiff has built up the reputation and established the popularity in the markets of goods stamped with a stamp the conspicuous word of which is “ Rogers,” and is a principal, if not the sole owner of such reputation, is alleged and clearly found; also, that the defendants intended to appropriate the advantage to be derived from securing such reputation for their goods to their profit, and that this was an inducement- to their commencing the business.

As was said by Baggallay, L. J., in the Thorley Cattle Food Case, “I am satisfied on the whole transaction (as *167set forth in the' finding) that the object was to obtain a large slice of the business previously ca.ried on by the plaintiffs.” L. R., 14 Ch. Div.,748.

But in our reasoning we are confronted with the proposition that, notwithstanding the positive findings of the court to which we have referred, the case of the plaintiffs, as set forth in the complaint, is so met and controlled by the negations in the finding as to prevent the plaintiff from obtaining any relief. The pleadings are reviewed somewhat briefly in the majority opinion, and the claim is made that the trial court has wholly negatived the allegations that the defendants were actually and intentionally fraudulent in the use of their stamp, and that in saying that the allegations of fraudulent design contained in article sixteen of the complaint are found not true, goes further, and negatives also the constructive fraudulent design implied in that article. But upon careful examination, the finding, when applied to the pleadings (the substance of which we have given) brings me to a different result.

The principal contention between the parties in their pleadings grows out of the allegations of positive fraudulent acts, or of constructive fraud, necessarily resulting from the acts set forth in paragraphs eleven to sixteen inclusive of the complaint. The defendants (without in terms denying the fraudulent intent and acts charged) aver that, as to those paragraphs, they have been engaged in, and are intending to carry on, the manufacture and sale, as set forth, “for the sole purpose of indicating that such articles are manufactured by them, and of availing themselves of the reputation which they (the defendants) have acquired in the markets, as before mentioned.”

The affirmative allegations of the plaintiff are met by the affirmative counter and inconsistent averment of the defendants, thus creating an issue to be passed upon by the trier, who distinctly negatives the claim of the defendants by finding, in effect, that the “ popularity which the defendants had in view,” and from which they wished “ to derive advantage,” was not the “reputation which they *168(the defendants) had acquired in the markets in their business.” The defendants’ previous business is expressly found not to have included the manufacture of silver-plated spoons, forks and knives, stamped with the name “Rogers.” On the contrary, this was the business found to have been established by the plaintiff and others, under whom the defendants do not claim.

In dissenting from the views of the majority of the court I do not find it necessary to hold that the fair and honest use of a name can be enjoined when it is used in the ordinary course of business in the way and manner in which other manufacturers of similar goods are accustomed to usp their own names in the preparation and sale of goods, for I do not regard this as such a case. It belongs rather to the class of cases referred to by Judge Lowell in the ease before cited (11 Fed. Reporter, 495), where he says: “ The books are full of cases in which defendants have been restrained from using their own names in a way to appropriate the good-will of a business already established by others of that name.”

I think there was error in the judgment complained of.

If any decree of injunction was to be passed I would prefer to give it more careful consideration before fixing its precise terms. I will merely add that my impression is that the defendants should have been enjoined from such use of the combination of words, “ C. Rogers & Bros.,” on silver-plated knives, spoons and forks, and from such, use of the word “Rogers” as part of any stamp or mark on the shank of silver-plated spoons and forks in connection with or without the suffix “ A 1,” as that purchasers will be liable to believe that spoons, forks and knives, so marked and made by the defendants, were made by the plaintiff.

In this opinion Park, C. J., concurred.