62 Mo. App. 168 | Mo. Ct. App. | 1895
The information in this case charges the defendant with unlawfully and knowingly selling cigars in boxes, bearing a counterfeit of imitation of the label or trade mark of the Cigar Makers’ International Union of America, an association of workingmen; and that the label so used by defendant was Intended to represent the cigars contained in the boxes sold by him as those of said Cigar Makers’ International Union of America. Defendant entered a plea of not guilty. The case was tried by the court, a jury being waived. On behalf of the state the evidence tended to show that the label or trade-mark affixed to the boxes of cigars sold by defendant was a fac simile of one that had been recorded by said union with the secretary of state, whose certificate showing the adoption of the same by said union was received in evidence over
“Issued by authority of the Cigar Makers’ International Union of America.
“Union Made Cigabs.
“This certifies that the cigars contained in this box have been made by a first class workman, a member of' the Cigar Makers’ International Union of America, an organization opposed to inferior rat shop, coolie, prison, or filthy tenement house workmanship. Therefore, we recommend these cigars to all smokers throughout the world.
“All infringements upon this label will be punished according to law.
“President C. M. I. U. of America.”
The evidence for the state also tended to show that defendant sold cigars in boxes bearing this label about the time charged in the information, and that he knew such label was an imitation and counterfeit. It was proven, on the part of the state, that the Cigar Makers’" International Union of America, as an association, was not engaged in the manufacture and sale of cigars, but that its individual members were cigar makers in the-employ of others who sold cigars, or such members were themselves engaged in the manufacture and sale-of cigars. This was all of the evidence on the part of the state. Whereupon the defendant moved the court to discharge him because of the insufficiency of such evidence, but the court overruled said motion and the defendant duly excepted. Defendant offered no evidence. The court adjudged him guilty, and assessed his punishment at a fine of $100, from which judgment he appeals to this court.
The law protects the owner of technical trademarks from infringement. It also protects the user of certain other insignia, attached to merchandise, from
“If any mechanic, manufacturer (association or union of workingmen), or other person, shall wish to adopt any particular name, term, design or device as his (or their) trade-mark, to designate, make known or distinguish any goods, wares or merchandise by him (or them) manufactured or prepared, he (or they) may write out a description of such name, term, design or device, describing the same accurately, and sign and acknowledge the same before some officer competent to*172 take acknowledgment of deeds, and file the same for record in the office of the secretary of state by leaving two copies, counterparts or fac similes thereof, with the secretary of state.”
“Any person, persons, (association or union of workingmen), or body corporate or politic, who shall vend or keep for sale any goods, wares, merchandise, compounds or preparations upon which, or in connection with which, any forged imitation or counterfeit label, brand, stamp, wrapper, imprint, engraving, bottle or trade-mark shall be placed, affixed or used, and intended to represent the said goods, wares, implements, .merchandise, compounds or preparations, as the genuine goods, wares, implements, merchandise, compound or preparation of any other person or persons, (association or union of workingmen), or body corporate or politic, knowing the same to be imitation or counterfeit, shall be deemed guilty of a misdemeanor.”
Prior to 1893 these sections, with the exceptions of the words included in brackets, were part of our statute law, and had been held to be designed for the protection of foreign ánd domestic trade-marks. State v. Gibbs, 56 Mo. 133. The whole scope and the particular words of these two sections demonstrate that they were intended to protect the owners of trade-marks by validating the record thereof, and making it a misdemeanor to counterfeit the same. These statutes were not -passed to authorize the record of some symbol which might be protected in the civil courts from imitation on the ground of unlawful or dishonest competition, but were confined, by express and certain terms, to an authorization of the record of trade-marks, and the creation of a criminal offense for selling or keeping for sale the goods of others than the owners of the trake-mark, bearing a counterfeit or imitation of the
In this inquiry it must be borne in mind that the recording of the label has no effect in giving it the quality of a trade-mark, if it was not such according to the law applicable to the subject. United States v. Braun, 39 Fed. Rep. 775. It is one of the indispensable. prerequisites to a valid trade-mark that it should point out the true origin or ownership of a vendible commodity to which it is affixed. That the label in the present case does not have this property, appears from
"We by no means hold that the members of said union who are engaged in manufacturing cigars may not have a proprietary interest in said label as identifying and giving value to their goods, which would entitle them to enjoin an appropriation of it by the defendant under circumstances showing unlawful competition. Carson v. Ury, 39 Fed. Rep. 777. The limitation of the statute to counterfeiting or imitating trade-marks per se, as a basis of criminal redress, does not conclude the proper parties from their civil remedies.
Again, even if it could be maintained (which is not conceded) that the label in question was a technical trade-mark, the conviction in this case could not be sustained under the evidence in the record. In order to entitle the state to a conviction, all the elements essential to constitute the offense, must be proven. There could be no offense under the section, supra, on which this information was framed, unless it appeared
For the foregoing reason, the judgment herein is reversed.