229 F. 543 | 2d Cir. | 1916
Upon an application filed January 5, 1906, and which stated that the trade-mark had been used continuously in its business since July 1, 1903, complainant on March 15, 1907, obtained a registered trade-mark for the name “Bismarck” applied to packages of beer. The evidence shows that certainly since July, 1904, plaintiff has been_ selling its beer continuously under that name. The evidence also indicates that, except for defendant’s sales, to be referred to later, no beer was sold anywhere in the United States subsequent to May, 1904, under the name “Bismarck.” We have, then, a registered United States trademark issued to an individual at a time when such individual was and for some time had been the only individual selling under that trademark; subsequent to the issue the same individual continues selling his goods under that mark for several years, with no one else selling goods under the same mark; finally, six years after registration, defendant begins selling under such mark. Manifestly a prima facie case of infringement of the statutory trade-mark is made out. It is in order, then, to consider the defenses.
In 1912 defendant decided to use the name .“Bismarck” as trademark for beer of its brewing. Quite naturally it apprehended that a similar use of the name of the great Chancellor had been made before, and undertook to ascertain if this were so. Its investigation seems to have been quite carelessly conducted, because it wholly failed to discover the registration of complainant’s trade-mark in the Patent Office in 1907. It did, however, discover, the registration in that office of the words “Bismarck Brau” by one Charles Weiler, of Moorestown, N. J., on December 8, 1890. Defendant tried to- get into communication with Weiler, but found he was deceased, whereupon it began to market .its beer as “Bismarck” in 1913. Subsequently learning of complainant’s use of the trade-mark,, it made a further search as to the Weiler trade-mark with the following results: Weiler was an employe of the Henry Muller Brewing Company. Apparently neither
The decree is reversed.