175 Pa. 78 | Pa. | 1896
Opinion by
The plaintiff gave evidence of the falling off of his custom concurrently with defendants’ beginning to use the trade-mark, and claimed that the former was the consequence of the latter. It is difficult to see how else he could prove his loss, for. he could not follow Ms customers individually and testify where they went to buy when they ceased to come to Mm. The inference was for the jury. In the language of the logicians he proved the sequence of the events, and it was for the jury to say whether the deduction from post hoc to propter hoc was rightly drawn. The learned judge left it to them with a very full caution, accompanied by illustrations, that a diminution of sales might be due to very many causes. This was as much as defendants were entitled to ask.
The second and third assignments of error are to the affirmance of plaintiff’s points, allowing the jury to infer a fraudulent intent to sell defendants’ goods as those of the plaintiff, from the use of the name and the label. These points must be considered in connection with the admitted facts. Defendants not only used the name wMch plaintiff had adopted but also the exact pictorial representation of the article. It was not an accidental resemblance but an admittedly intentional copy, the
The remaining assignments of error are based on the refusal to affirm defendants’ points relative to the title “ Burgess ” as a merely descriptive word not susceptible of appropriation as a trade-mark. There was however a radical defect in each of these points which prevented its affirmance, and that was the complete disregard of the admitted facts of the case. The plaintiff with the aid of a physician invented the instrument, and although he did not, and perhaps not being the sole inventor could not, patent it, he did adopt and attach the name of his partner Burgess to distinguish his make of atomizer, and invented and used a certain pictorial representation of it for the same purpose. It appears that it is an imperative rule of ethics, enforced as a by-law of the College of Physicians of Philadelphia, and highly honorable to the medical profession, that a physician who discovers a remedy, or a surgeon who invents or improves an instrument, does not take a patent or a trade-mark for it, but dedicates it at once to the service of humanity, and though it may become known by his name it is nevertheless free for all to use, and the name is regarded as merely descriptive of the article. It was defendants’ error or misfortune to have assumed that the present was such a case, and to have used the name accordingly. Plaintiff, however,
The last point of defendants was objectionable for another reason. It asked the judge to say that if defendants did not so use the name as to deceive the public the plaintiff could not recover. It is not necessary that the public should be actually deceived in order to afford a right of action. All that is required is that the infringement should have a tendency to deceive. The gist of the action is the intent to get an unfair benefit from another’s trade. Actual deception of the public is only material to the question of damages. On that matter, there-was not only the use of the name Burgess but also, the admitted, imitation of the label or wrapper. The case was properly left, to the jury.
Judgment affirmed.