16 Colo. 388 | Colo. | 1891
The right which a manufacturer has in a ■ trade-mark is everywhere recognized, as property. The mark may consist of a name or a device or a peculiar arrangement of words, or such words with some device of greater or less novelty, which have been applied to a manufacture to designate the goods as made by a particular person. When a manufacturer has thus distinguished the goods he makes by a peculiar device, so that they may be known in the market as his, he thereby acquires the right to whatever profits may result from his superior skill, knowledge or honesty of process; and this right may not be impaired by any piratical use of the devices which serve to mark them, and lead the public to think that they are his. The legal right to the use of the trade-mark springs from its usefulness to point out the original ownership of the article to which it is affixed, or to give -notice to the public who is the producer. From this right the power of legal protection is derived. The first difficulty which arises here is to determine the question of infringement. Exact similarity is not necessary. To insist on that would be to permit most wrong-doers to evade responsibility. Color-able imitations are as much the subject of legal redress as the more exact and perfect similitudes. What is necessary in all cases is a similarity which will operate to convey a
Had these words, or the picture, been novel, and used in combination without more, some basis might be found for the claim that they made a trade-mark. But the picture of the plant, in connection with these or similar words, has been for many years used to designate the manufactured article. The two alone would not, under the testimony, serve the purpose. To all this was added the cabalistic words “ El Cabio ” and the name “ De B. Solis.” As a whole, there was produced that which would constitute a trade-mark according to accurate legal definition. When, however, the whole was looked at, there was no room for the deception of the purchaser by the use of the piratical design — the El Cavio brand. Doubtless it was designed and selected without the honesty of purpose which usually animates all fair business competition. It seems to have been chosen to gain some possible advantage; but it does not come up to the necessities of the rule. “ El Cavio ” alone, if the words “ El Cabio ” had been all of the device, might have infringed. Had. the words, with the picture, together, constituted the trade-mark, then the infringement might have been complete; but it took the words, the pict
On the trial of the case the court denied the injunction, and placed the decision on the principle that, to entitle a complainant to the protection afforded by the exercise of
The other branch of the question — deceit of the public — is not so free from difficulty. If it be conceded that the trade-mark tended to deceive the public in any material particular, the relief must be denied. Below the picture of the tobacco plant, it will be remembered, were the words “ Habana,” “ Copyrighted.” They were words of definite meaning to the trade, and probably of equally certain significance to the public. They were not, however, as is clear from the evidence, of the same import to each class. The word “ Copyrighted ” meant the same to •everybody. It implied that the protection of the statute applicable to such matters had been secured. This was probably believed to be true, but was without foundation. The misrepresentation, however, was unimportant. It did not tend to deceive the public in respect to any of those
That the representation made by the trade-mark as to the materials of Avhich the cigars were made áre of the sort which the law says must appear to be absolutely truthful, where its protection is sought, there can be no question. They are of what is by all the authorities recognized as the substance of the device. Such words are used to lead the public to believe that the article sold possesses certain qualities lcnoAvn to belong to such material. They are used to influence the public to buy because of 'the public taste for such things. It seems clear that under the proof this case is brought within the full scope and application of this principle. The word “ Habana ” must be taken as a part of the mark Avhich the plaintiff; wants protected. It is on a conspicuous part of the label. It is in large, bold-faced
Heed and Richmond, 00., concur.
For the reasons stated in the foregoing opinion the judgment is affirmed.
Affirmed.