33 Md. 252 | Md. | 1870
delivered the opinion of the Court.
These appeals are brought before us upon a record of unusual size, which we have examined with a great deal of care and patience. The proof upon both sides has been very elaborate, and the case rests almost entirely upon questions of fact. As was said by Lord Lasígdale, in the case of Croft vs. Day, “what is proper to be done in cases of this kind must more or loss depend upon the circumstances which attend them.”
We are relieved from the necessity of reviewing at length the facts and circumstances of this case, and we omit embodying them here because of the unusual space which would be required to set them out. They are so well considered and stated in the opinion of the Judge below, that we cannot better express our own views than by adopting, as we do, what he has said in reference to them. We are fully satisfied, from all the proof, that the trade-marks and certificates in question belong to Henry Stonebraker, and that they have been improperly, and without authority or excuse, appropriated and used by the appellants, either by themselves or through their contrivance. That there is some difference in those used by the appellants, there is no doubt. But the change is of such a character as to indicate an evident purpose to deceive. Nobody can look at the two — the genuine and the imitation— without being satisfied that the genuine have been so altered, and so craftily used and employed, as to be well calculated to
The decree of the Court below is correct in so far as it proceeds to restrain and enjoin the appellants. But that part of it which directs an account, is in some respects erroneous. Samuel Stonebraker and Henry K. Hoffman, by the terms of dissolution of the partnership between themselves and Henry Stonebraker, dated the 10th of December, 1866, reserved the right to sell under these trade-marks the stock on hand or in the hands of agents at the time of dissolution, and for the sales of such stock, no matter by whom made, whether by themselves or their vendees, no account can bo demanded. The other parties, Passano, Abraham S. Stonebraker and the Clotworthys, not being bound by any contract to the contrary, had the right, under the law as we have stated it, to manufacture the medicines or preparations to whatever extent they chose, and no accounting for such, as they manufactured simply, can be required of them. Their liability to account is limited to sales, under the prohibited use of the protected trade-marks, of such articles as were not part of the stock referred to. The decree is undoubtedly erroneous in requiring an account, as by its terms it clearly does, from these par
Decree reversed and cause remanded.