43 F. 416 | U.S. Circuit Court for the District of Eastern Missouri | 1890
This case, upon the evidence, presents the following state of facts: The complainant is a French corporation, located at Fe-camp, Normandy, in France, and is engaged in the manufacture and sale of a cordial or liquor called “Benedictine,” for which there is a large demand in the United States, as well as in France and in many other foreign countries. The liquor is made of a decoction of herbs that grow on the heights of Normandy and the best cognac, according to a secret recipe, formerly belonging to the order of Benedictine monks, who founded and for several centuries maintainedan abbey at Fecamp. Complainant’s distillery for the manufacture of the cordial is located on lands formerly belonging to the Benedictine monks, appurtenant to the abbey in question. After the dissolution of the monastic orders and the sequestration of their property by the first republic of France, the book containing the recipe for Benedictine, as well as many other recipes, by gift of one of the monks of the abbey of Fecamp, passed into the possession of the maternal grandfather of A. Le Grand, Sr., the present directeur general of the complainant company. Some time prior to the year 1863 the book, by inheritance, became the property of Mr. Le Grand himself, and in that year he began the manufacture of the liquor or cordial at Fecamp, according to the formula of the monks. The formula has been kept secret in his family, and is known only to Mr. Le Grand and his two sons, who are subdirectors of the complainant. Since the year 1866 the liquor has been sold under the name of “Benedictine,” and is widely known by that name, and has been put on the market in peculiar shaped bottles, provided with labels, seals, wrappers, etc., of a distinctive character; the labels, seals, etc., so in use have also been filed and registered in the proper offices as a trade-mark, both in France and in this country. Mr. Le Grand appears to have conducted the business of manufacturing and selling Benedictine at Fecamp until 1876, when a corpora
In support of the same defense now under consideration it is further suggested that Benedictine is not made, according to a recipe of the monks, from herbs grown on the fallows of Normandy, and that the representation to that effect in complainant’s advertisements is false. It is no doubt true that the Benedictine put upon the market by defendant is not made according to such recipe, or of such herbs, although its circulars contain a representation substantial!y to that effect. But there is no evidence in the case that the representation is false as applied to the foreign article actually manufactured at Fecamp; on the contrary, there is in the record the statement of A. Le Grand, Sr., supported by strong corroborative facts, that the representation is in every respect true; and the court would not be warranted in rejecting his testimony merely because Le Grand refused, on his cross-examination, to publish the formula.
Finally, it is urged that complainant is guilty of such misrepresentation as precludes equitable relief, because the fact is not disclosed by its labels or wrappers that the business conducted by A. Le Grand, Sr., up to 1876 has since then been conducted by a corporation, — the present complainant. This contention appears to the court to be without merit, for the following reasons: One of the advertisements of Benedictine, circulated by the complainant, does show, as before noted, that the liquor is manufactured at Fecamp, by a business corporation, — the “Societe Anonyme de la Distillerie," etc. And with respect to the labels and wrappers on the bottles, in use prior to 1876 and since, it may be said that they never did represent Mr. Le Grand, Sr., to be the sole party in interest in the manufacture of Benedictine. The substantial representation conveyed by the labels on this point has always been that Le Grand was direeteur or direeteur general of some concern (whether partnership or