79 Pa. Super. 331 | Pa. Super. Ct. | 1922
Opinion by
This is a suit to restrain unfair trade competition, and is based on the following facts:
The plaintiff has been a manufacturer of brooms since 1894. He carries on business under the trade name, Hamburg Broom Works. In 1917, he began the manufacture of several brands of distinctive brooms. One, known as “Puritan,” has a highly polished or enameled natural color wood handle, and is finished with two bands of white velvet, about three inches apart, inserted in the wire finish to the binder which binds the broom corn to the broom handle, the band near the broom corn being
In 1919, a number of plaintiff’s employees withdrew from his service and organized a corporation known as West Reading Broom Works, the corporate defendant. Among them were the defendant, John H. Hoffman, president of the new company, who had been employed by plaintiff for six or seven years as a salesman; Walter Hess, another defendant, who had worked for plaintiff for nineteen years and had been foreman of his plant for over ten years; and A. C. Oberholtzer, secretary, who had worked for plaintiff for nine and a half years and had acted as his office manager and in charge of salesmen.
The new company at once proceeded to manufacture á number of brands of brooms, which were as near like the distinctive brands of the plaintiff, above described, as it was possible to make them, copying them exactly in all
The court below found that other broom makers used polished handles, velvet or cloth bands, wire finish and sewing cord of various colors in the manufacture of brooms, and held that plaintiff could not appropriate them as distinctive features; he found that plaintiff’s label was distinctive, but, as he had not claimed that his label alone was distinctive, held that it could not be “attached to other features in common use and the whole appropriated under the guise of a distinctive scheme,” and dismissed the bill.
We are, under the facts in the case, unable to agree with the learned court’s conclusion. While polished and colored handles, wire binding and finish, velvet or cloth bands, and sewing cord of various colors had been used by other broom manufacturers, none of them used them all, or in combination, of the form, size, color and arrangement adopted by the plaintiff, which, in conjunction with his distinctive labels, made his several brands of brooms different in appearance and distinguished them from other makes, so that even at a distance, without examining the label, one familiar with them could pick them out as the product of plaintiff’s manufacture.
These identifying features were not required in the process of manufacture and, taken together or in combination, produced a characteristic form or appearance, similar to a distinguishing package or container used for bulk goods, which differentiated plaintiff’s brands from those of other makers and gave them, in consequence, an enviable popularity in the trade and with the public.
We can see no substantial difference in principle between this case and that of Penna. Central Brewing Co. v. Anthracite Beer Co., 258 Pa. 45, where the defendant was enjoined from coloring the bands on beer barrels in imitation of the color bands used by plaintiff for many years. For years, brewers all over the country have
That a number of details of appearance, none of which singly could be exclusively adopted by a manufacturer may be combined or collocated so as specially to identify and distinguish his product from his rivals’ and be entitled to protection by courts of equity from unfair competition is settled by a wealth of authority in other jurisdictions. “The most universal element may be appropriated as the specific mark of a plaintiff’s goods, if it is used and claimed only in connection with a sufficiently complex combination of other things”: New England Awl & Needle Co. v. Marlboro Awl & Needle Co., 168 Mass. 154, 46 N. E. 386. “A court of equity will not allow a man to palm off his goods as those of another whether his misrepresentations' are made by word of mouth or more subtly by simulating the collocation of details of appearance by which the consuming public has come to recognize the product of his competitor”: Enterprise Mfg. Co. v. Landers et al., 131 Fed. 240 (C. C. A.). “While no one can have a trade-mark monopoly in color of paper or shape of label, in color of ink or in one or another detail, a general collocation of such details will be protected against an imitation the natural result of which is to deceive purchasers, and which must, therefore, be presumed to have been adopted for that purpose” : Lalance & Grosjean Mfg. Co. v. National Enameling & Stamping Co., 109 Fed. 317. “They (defendants) had the right to use the background used by the complainant, they had the right to use the clipped corners
The principle upon which the courts proceed is that it is unfair trade competition for a manufacturer to adopt a mode of conduct, the natural and probable effect of which is to deceive the public, so as to pass off the goods or business of one person for that of another. A manufacturer has no right so to dress up his product or enclose it in a package so like that of a rival manufacturer as to deceive a purchaser or enable a dealer to do so: Penna. Central Brewing Co. v. Anthracite Beer Co., supra, p.
In Juan F. Portuondo Cigar Manufacturing Co. v. Vicente Portuondo Cigar Manufacturing Co., 222 Pa. 116, the present Chief Justice, then on the Common Pleas bench of Philadelphia County, granted an injunction against the defendant because of “a studied effort on the part of Vicente Portuondo to imitate the markings, labels and general method of dressing his goods that had been pursued by Juan F. Portuondo and thereby to profit on the magic that had already been given to the name of Portuondo by his brother,” holding it to be such unfair trade competition as to entitle the plaintiff to relief; and his action in that respect was upheld by the Supreme Court.
It is not necessary that it be shown that the public has actually been deceived by the imitation, but only that it has a tendency to deceive. The gist of the action is the intent to get an unfair benefit from another’s trade: Shaw & Co. v. Pilling & Son, 175 Pa. 78. Though a manufacturer does not himself deceive the dealers, he will be enjoined if he knowingly puts it in the power of dealers to deceive the public: New England Awl & Needle Co, v. Marlboro Awl & Needle Co., supra; George G. Fox Co. v. Glynn, supra; N. K. Fairbank Co. v. Bell Mfg. Co., 77 Fed. 869 (C. C. A.); Royal Baking Powder Co. v. Royal, 122 Fed. 337 (C. C. A.); Scriven v. North, 134 Fed. 366 (C. C. A.); Garrett v. Garrett, supra.
The rule was well stated by the late Mr. Justice Mitchell, in his dissenting opinion in Brown v. Seidel, 153 Pa. 60—though held by the majority of the court not to be applicable to the facts in that case, as not showing an imitation, or intent on the part of the defendant to sell his goods as those of the plaintiff (p. 72)—He said:
In Scranton Stove Works v. Clark, 255 Pa. 23, Mr. Justice Frazek discriminatingly reviewed the pertinent decisions and, following the Portuondo case, declared the general rule to be “that anything done by a rival in the same business by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product, offered by him for sale, they were buying the product of another’s manufacture, would be in fraud on that other’s rights and would afford just ground for equitable interference”; and it was held that, while the defendants could not be enjoined from making stove parts of the same size and shape as the plaintiff’s they would be restrained from using any marks, initials, abbreviations, etc., whether registered or not, adopted by plaintiff and used by it as an effective means of identifying the articles and products of plaintiff’s works, on the ground that defendants’ use of them was calculated to deceive the ordinary purchaser into believing they were manufactured by plaintiff. See, also, Bohrow v. Manekin, 59 Pa. Superior Ct. 334; Hires Co. v. Hires, 182 Pa. 346.
We think the allegations of the bill are sufficiently broad to cover a combination or collective use of all the imitation devices used by the defendants in the manufacture of their product. The fifth, sixth, seventh and ninth assignments of error are sustained. The decree of the court below is reversed, the bill is reinstated, and it is ordered that a decree be entered enjoining the defend*