121 Mo. App. 429 | Mo. Ct. App. | 1907
(after stating the facts). — The plaintiff has not protected his washing powder by a trademark which the defendant might infringe, and the relief sought is against unfair competition; a legal subject-matter regulated according to the principles on which trade-marks are protected. The theory of plaintiff’s case is that his commodity having become known to the public under the brands of Queen and Red Gross Washing Powder, and as sold in packages of a particular shape and size, acquired a popularity and value which the two supply companies and Sperry have appropriated to themselves by vending the Sperry powder in similar packages and bearing the same labels. The essence of the law of unfair trade is that the maker of or dealer in a given commodity shall not, by any deception, palm it off on the trade as the commodity of some other maker or dealer. If an article has acquired a reputation as meritorious, and is distinguished ' to the public by a certain brand or trade-name, or by the form of package in which it is vended, the vending of another article of like kind under an imitation of the label or package intended to deceive the public into believing it to be the meritorious article, will be restrained by a court of equity at the suit of the owner of or dealer in the latter article. [McLean v. Fleming, 96 U. S. 245-253, and cases cited.] In such cases, the reputation of the commodity is considered part of the good will of , the business of the proprietor or dealer which he is entitled to have protected. [McLean v. Fleming, 96 U. S. l. c. 252.] The point of difficulty in the present case has been to find any good will or other property right of the plaintiff on which the defendants have encroached.
It is insisted that plaintiff was entitled to judgment against the Red Cross Company because it filed no answer; but as we have held Sperry is violating no' right of plaintiff’s in selling his powder to the two companies in the cartons described, the Red Cross Company cannot be enjoined from receiving his powder without depriving him of custom to which he is entitled.
The judgment is affirmed.