Thomson v. Winchester
36 Mass. 214
Mass.
1837
Check Treatment
Shaw C. J.

The Court are of opinion, that if the defendant made and sold medicines, calling them “ Thomsonian Medicines,” and sold them, or placed them in the hands of others to sell, as and lor the medicines made and prepared by the plaintiff, so that persons purchasing the same' supposed and believed that they were purchasing the medicines made and pre* pared by the plaintiff, it was a fraud upon the plaintiff, and an injury to his rights, for which the law will presume some damage. Sykes v. Sykes, 3 Barn. & Cressw. 541; S. C. 5 Dowl. & Ryl. 292. Such a case, therefore, being proved, the plaintiff will be entitled to recover nominal damage, at least, and something more, if he can make it appear to the satisfaction of a jury, that' he has sustained more than nominal damage.

We have reason to believe, that it was so ruled at the trial, and that there was an error in drawing up the report, representing the opinion given upon one point, as in fact given upon another ; but, being bound to take the report as it is, we think the verdict must be set aside and a new trial granted.

The Court are also of opinion, that the rule laid down was. correct, that without obtaining a patent, the plaintiff had no exclusive right or privilege to compound or vend the medicines called “ Thomsonian,” although he was the original inventor, and that he had no more right than the plaintiff to make and vend these medicines, or to call them Thomsonian, if this term ' had acquired a generic meaning, descriptive of a general kind, quality and class of medicines, as, for instance, James’s powders, or Turlington’s balsam, and if they were not sold to consumers, or consigned or sold to others, to be sold to consumers, as and for medicines made and prepared by the plaintiff.

If the defendant made and sold medicines, calling them Thomsonian as a generic term designating their general character, but did not offer and sell them, nor consign them to others to sell, as and for medicines made and prepared by the plaintiff, and if he made and compounded such medicines of bad materials, with inadequate skill, by means whereof the credit and *217cnaracter of all Thomsonian medicines were brought into disrepute, the plaintiff can recover no damage. If he, in fact, suffers loss from that cause, it is damnum absque injurió. It shows no infringement of any right of the plaintiff. The loss he would sustain is common to him and every other druggist, who may show that the whole craft suffer loss, when the pub lie are imposed on by anyone of their number, who, for the sake of gain, may compound medicines of cheap and inferior materials, and thereby bring that species of medicine, or all species of medicine, into disrepute, and deter many persons from taking medicine, and greatly diminish the sale. The right to make and to sell is common to all, if no deceit is practised by one, in falsely assuming the name and credit of another. In such case, if the plaintiff makes a superior article, and desires to secure to himself the benefit arising from the superior char acter of his medicines, he must take care so to designate and identify them as to save himself and his customers from mistake and imposition.

The consequence is, that imposition, falsehood and fraud on the part of the defendant, in passing off his own medicines as those of the plaintiff, would be a ground of action, but that adulteration of his own medicines, without such imposition and fraud, will afford the plaintiff no cause of action.

Mew trial granted.