120 F. 254 | 6th Cir. | 1903
after making the foregoing statement of the case, delivered the opinion of the court.
Oils adapted for use in the cylinder of an engine as a lubricator must be capable of enduring a high degree of heat without burning or injury to their lubricating qualities. As lubricating oils having as a base petroleum came into use in competition with animal fat oils, so long exclusively used, it became important to assure the consumers of the safety of the new lubricator at a high degree of heat..
That a descriptive word or sign or symbol, descriptive from popular use in a descriptive sense, may acquire a secondary significance denoting origin or ownership, is true. But this secondary significance is not protected as a trade-mark, for a descriptive word is not the subject of a valid trade-mark; the only office of a trade-mark being to indicate origin or ownership. When a descriptive or geographical word or symbol comes by adoption to have a secondary meaning denoting origin, its use in this secondary sense may be restrained, if it amounts to unfair competition. In such case, if the use of it by another be for the purpose of palming off the goods of one as and for the goods of another, a court of equity will interfere for the purpose of preventing such a fraud. But this kind of relief depends upon the facts of each case, and does not at all come under the rules applicable to the infringement of a trade-mark. We have lately had to deal with this question, and need not again go over the distinction. Computing Scale Co. v. Standard Scale Co., cited above; Elgin Watch Co. v. Illinois Watch Co., 179 U. S. 665, 679, 21 Sup. Ct. 270, 45 L. Ed. 365.
The complainant has not made a case of unfair competition. The defendant company is not a maker of the cylinder oil which it sells, but buys from a well-known manufacturer a grade of cylinder oil which it sells in barrels, having stenciled on the barrel heads the symbol “600V.” This oil is of high grade, and dealers put it 011 the market under their own brands or names, retaining the mark “600V” as a guaranty of quality, and as a descriptive symbol. The defendant company stencils the word “Climax” over “600V,” and the words “Cylinder Oil” below. The lettering is black. The complainant, on the other hand, makes its barrels with a parti-colored circle on the barrel head, within which, in parti-colored letters, is the marking “Vacuum Oil Co. No. —--600W Cylinder Oil, Rochester, U. S. A.” The simplest examination shows that defendant has made no effort to simulate the general marking of barrels used by complainant. It is difficult to see how a purchaser of average observation can be deceived into mistaking one of defendant’s packages for one marked and sold by the complainant.
The decree below must be affirmed.