112 F. 528 | U.S. Circuit Court for the District of Northern California | 1901
The complainants are citizens of Rotterdam, Holland, and are distillers and selectors of gin. Eor many years they have exported gin to the United States in dark glass bottles of distinctive size and shape, having their firm name, address, and monogram blown into the glass. Each bottle bears upon one of its sides a label in a circular form, containing the words, “A. Van Hoboken & Co., Rotterdam, Holland,” together with the monogram, “A—V—H”; and, in addition, the cork of each bottle is covered by a circular white label, printed in black, with a fanciful scroll and the words “A. Van Hoboken & Co.—Genever,” together with the monogram “A—V—H.” It is alleged that these labels, trade-name, and monogram are respectively valid and subsisting trade-marks, and of very considerable value to the complainants. The respondent is a corporation organized and existing under the laws of the state of California, and háving its principal place of business in the city of San Francisco, and dealing in liquors. The complainants charge the respondent with carrying on an unfair and fraudulent competition against complainants by refilling the complainants’ bottles with a spurious gin of inferior quality, after the original contents have been removed in» the course of trade, and palming off said spurious gin upon the public as and for the genuine bottled gin of complainants. Irreparable loss and damage are alleged to have been sustained by .the complainants by reason of said fraud and unfair trade of the respondent, and this suit is brought for an injunction restraining the respondent from the alleged infringing acts, and for an accounting. The respondent makes a general denial of these charges.
It appears from the evidence that an agent of the complainants went to the respondent’s place of business, and asked for some gin, indicating two bottles in the show window as the kind desired. These bottles had the complainants’ name blown in the glass on the side of the bottle, and the monogram “A—V—H” on one of the
“It is not essential to the right of a complainant to an injunction to show absolute fraud or willful intention on the part of the respondent. * ⅜ * If the acts of the respondent in adopting the name of ‘Gold Drop’ constituted an infringement of the trade-mark or trade-name of the complainant, and it was put on the market in such a manner as to interfere with the legal rights of the complainant, to its loss and injury, it would be entitled to an injunction, irrespective of the question of any testimony as to actual fraud or willful intent.”
And further on, with regard to the deception of the purchaser by appearances, the court says:
“There are many cases where respondent’s packages and labels are to the eye so distinctive and unlike the packages of complainant as not to deceive purchasers exercising ordinary care, who are accustomed to the size of the packages and the general characteristics of the labels. But how about the stranger, who knows nothing about the packages or of the labels, but has read the advertisement, and remembers the same?”
In the case at bar, would not persons of ordinary intelligence, buying with usual care, seeing the firm name blown into the side of the bottle, and the distinctive trade-mark “A—V—FT” also plainly, visible on the bottle, be led into the mistaken belief that they were purchasing the genuine' article manufactured by the complainants? The answer must be-in the affirmative, unless the attention of the purchaser was specially called to the fact that the bottle contained
Ret a decree be entered in favor of the complainants.