109 F. 314 | U.S. Circuit Court for the District of Southern New York | 1901
The complainant corporation, citizen of the state of Massachusetts, brings this suit in equity to enjoin and restrain defendants, citizens of New York, and dealers in glue, from using its trade mark and name “Le Page” on bottles or packages containing a liquid glue. The facts of this case are somewhat unusual in their character., The complainant avers that:
“It Is engaged in the manufacture and sale of liquid fish glue, which it has put upon the market under the name of ‘Le Page’s Liquid Glue,’ and has been so engaged continuously since February, 1882; * * * that it has adopted the trade name or mark ‘Le Page’; * * * that the defendants are making, or causing to be made, and selling packages of liquid glue hearing the trade-mark of the complainant, which are not put up by the complainant, and do not contain glue of the same quality as the glue which the complainant puts up and sells in similar packages bearing said trade-mark; * * that the use by the defendants of the name ‘Le Page’ has in many instances deceived complainant’s customers and the public into ordering or buying as the complainant’s goods glues of different make, sold by the defendants.”
The answer of the defendants alleges:
“That the complainant sells a certain fish glue in liquid form, to which it has applied the name ‘Le Page’; that the said glue is branded by the complainant as ‘Le Page’s Liquid Glue’ or ‘Le Page’s Fish Glue,’ and that the said brand is applied to all qualities of said glue and to all forms of it; that the defendants have purchased from complainant a number of barrels of liquid glue which it manufactures, and were branded as ‘Le Page’s Liquid Glue’ by the complainant; that the said glue in bulk is known as ‘Le Page’s’ on the market; that at the time of their said purchase the defendants informed the complainant that they purchased the said glue for the purpose of bottling it and reselling it; that the defendants have filled their bottles with the glue purchased from complainant company, and have described the contents thereof as ‘Le Page’s Liquid Glue, Manufactured only by the Uussia Cement Company, Gloucester, Mass., and Bottled by the Columbia Wax Works, New York.’ ”
The proofs clearly show that complainant manufactures various grades of glue; that it designates its best grade of goods as “Le Page’s Liquid Glue,” without additional qualification. This grade is sold chiefly in bottles and small tin cans for consumption by the retail trade. It is odorless, and less adhesive, although more expensive; is made from better material, and refined with more care, it first became known to the public in 1882. The complainant has an exclusive right to the use of the word “Le Page” as a distinctive name for glue manufactured by it. Cement Co. v. Le Page, 147 Mass. 208, 17 N. E. 304; Le Page v. Cement Co., 2 C. C. A. 555, 51 Fed. 941, 17 L. R. A. 354. For these reasons it has been distinctively recognized by the trade, and its distinctive features exploited by the manufacturer. It therefore acquired a favorable and advantageous reputation. Other grades of glue of complainant’s manufacture are distinguished by arbitrary designations, and by numbers having a particular signification. The trade mark and
It is uniformly held that a person has no right to dress his goods-so as to deceive the intending purchaser, and to induce him to believe that he is buying an article of superior quality to that which is sold him. McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Lawrence Mfg. Co. v. Janesville Cotton Mills, 138 U. S. 551, 11 Sup. Ct. 402, 34 L. Ed. 1005; Flour-Mills Co. v. Eagle, 30 C. C. A. 386, 86 Fed. 608-613, 41 L. R. A. 162. The test in this case must be: Was there an intent on the part of these defendants, by the unauthor