53 How. Pr. 192 | U.S. Cir. Ct. | 1877
The evidence is clear that the plaintiffs were systematically and knowingly carrying on a fraudulent trade. Although they may have omitted the fraudulent and deceptive and untrue language from their circulars before this suit was commenced, yet if they have any property in the trade-mark which they claim title to, they acquired such property by the use, for a considerable time, of such language in the circulars which accompanied the articles they sold, and in respect to which the trade-mark is claimed. Such language was to the effect that “a celebrated chemist had recently discovered a vegetable principle of great value, and prior to making it generally known had introduced it into hospitals, and had generously extended its use to the most successful physicians; that the flattering and astonishing results which characterized its action, at once stamped it as the most remarkable principle ever discovered; that this powerful remedy was named capcine, and that it was used in plasters prepared by the plaintiffs, and called Benson’s Capcine Plasters.” A registered trade-mark is claimed in the word “ capcine.” Courts of equity refuse to interfere in behalf of persons who claim property in a trade-mark acquired by advertising their wares under such representations as those above cited, if they are false. It is shown that there is no such article as capcine known in chemistry or medicine, or otherwise. The authorities are clear that in a case of this description a plaintiff loses his right to claim the assistance of a court of equity (Lee agt. Haley, L. R., 5 Chy. App. Cas., 159; Leather Cloth Co. agt. American Leather Cloth Co., 4 De G., J. & S., 142).
The motion for an injunction is denied.