204 F. 553 | 6th Cir. | 1913
Lead Opinion
The complainant, which is a corporation engaged in the manufacture- of whisky, at Louisville, Ky., filed its bill to restrain. defendant from selling whisky under the name; of “Golden Heritage,” which complainant alleges infringes its trademark “Hermitage”; unfair competition, especially by the use of said infringing name, being also alleged. Upon final hearing on pleadings and proofs the bill was dismissed, and the case is here on appeal from that decree.
Several reasons are urged in support of the decree of dismissal:
Complainant’s Script Mark.
Defendant’s Script Mark.
The similarity in appearance is obvious. Defendant’s mark differs, from complainant’s only in that it omits the letter “m” and has the word “Golden” in much less conspicuous type, obliquely set. On some of defendant’s earlier labels the name was followed by the device of
(a) That the label on complainant’s whisky bottled in bond contains these words:
“Caution: Be sure that the internal revenue stamp over cork and capsule is unbroken, as this guarantees the genuineness, purity, and age of the contents of this bottle.”
(b) That complainant’s label on its whisky bottled in bond bears this further legend:
“This bottling in bond at the distillery under the supervision of the officers of the internal revenue insures to the consumer the highest grade of whisky made in this country, with guarantee of the United States government as to its age and purity.”
■ (c) That certain of complainant’s labels bore these words: ,
“Bottled at the distillery in bond under supervision of the officers of the internal revenue and guaranteed by the United States government puré and ai age indicated by stamp over cork and capsule.”
“Distilled at tlie Hermitage distillery, Franklin comity, Kentucky, this whisky is bottled at the distillery tinder onr personal supervision and guaranteed absotulely pure and unadulterated.”
(e) That certain of complainant’s labels bore.the statement that the whisky was manufactured—
"in the sour mash tire copper way, being singled and doubled in copper stills over open wood lires.”
The representations contained in (a), (b), and (c), above, may be considered together. The criticisms of these three forms of labels are, first that the government does not guarantee the purity of the whisky; and, second, that the bottling in bond does not insure to the consumer the highest grade of whisky.
The court below was of opinion that the representations contained in statements (a) and (b) were misleading, and dismissed the hill for this reason, and because it was of opinion that any one desiring Hermitage whisky, and being accustomed to the way it had been labeled, would not be deceived by defendant’s label. It is true that the government does not guarantee the purity of whisky bottled in bond in the commercial sense, as being merchantable and free from any element of commercial unsoundness; for example, it is established that whisky may be unsound, that is to say, made from an impure grain and so be unmerchantable, also that the same may result from bad cooperage, and that the internal revenue officers pay no attention to such conditions. The presence of the stamp does, as we undersand the record, practically guarantee the age and the genuineness of the whiskj', because it identifies the date of manufacture and of bottling, and gives assurance that the whisky as bottled is the same as when manufactured, except as aged and to the extent that water may be added to reduce to 100 proof. The question in this connection turns, then, upon the definition of purity, '['he act which allows the bottling' of distilled spirits in bond (Act March 3, 1897, c. 379, 29 Stat. 626 [U. S. Comp. St. 1901, p. 2150]) forbids “any mingling of different products, or of the same products of different distilling seasons, or the addition or the subtraction of any substance or material or the application of any method or process to alter or change in any way the original condition or character of the product except as herein authorized,” the exceptions not being here material. In the report of the committee which submitted to the House of Representatives the draft of the statute in question, it is said that:
"The obvious purpose of the measure is to allow the distilling of spirits under such circumstances and supervision as will give assurance to all purchasers of the purity of the article purchased, and the machinery devised for accomplishing this makes it apparent that this object will certainly be accomplished.” (Italics ours.)
This report may properly be resorted to for the purpose of determining the scope of the statute passed on the strength of it. Binns v. United States, 194 U. S. 486, 24 Sup. Ct. 816, 48 L. Ed. 1087. We
' ■ The same considerations apply to the suggestion that the time this suit was begun complainant was using barley malt, and that therefore its rye whisky was not pure rye. There is evidence, as we construe the record, indicating that dealers generally did not understand that the use of barley malt made an otherwise rye whisky impure. It is not easy, however, to justify the assertion in statement (b) that “this bottling in bond * * * insures to the consumer the highest grade of whisky made in this country,” because, first, complainant itself seems to have made a higher grade; and, second, its mere bottling, under supervision of the revenue officers, furnished no assurance of high grade, except as involved in age, purity, and proof.
As to representation (e): The terms “singled” and “doubled” refer to the first and second boilings. It is established that the first boiling is done by steam, and that the second boiling is done over a wood fire, not open, but in a closed furnace. We cannot say that this is an immaterial misrepresentation.- While whisky singled and doubled over open wood fires may not be superior to that obtained by the processes employed by complainant, the record indicates that many users of whisky think that the open'fire process is superior, and so might well be misled and deceived by this misrepresentation.
Taking the whole case together, we are impressed that the mis
We are not satisfied that complainant had discontinued all the misleading representations, and the decree of the Circuit Court must therefore be affirmed. But, the trade-mark not being itself fraudulent, the affirmance should be without prejudice to the institution of a new suit for injunction whenever complainant shall have put an end to the misleading representations.
Rehearing
On Petition for Rehearing.
But one matter seems to call for special mention: In the‘opinion filed March 7th last, it is said (speaking of the representation that complainant’s whisky was “singled and doubled in copper stills over open wood fires”) that:
“The record indicates that many users of whisky think that the open-fire process is superior, and so might well be misled and deceived by this misrepresentation.”
A reference to the record now made fails to disclose such evidence, and the statement in that regard is apparently an error. This , mistake does not, however, justify a rehearing, because, first, the representation in question was not the only respect in which complainant was held to offend; and, second, in the absence of evidence to the contrary (and we find no such evidence), it is to be presumed, from the fact that the representation was made, that a portion at least of the public was expected to regard it as material, and, if so, we cannot say, upon this record, that it was immaterial.
On careful consideration of the petition, we think a rehearing is not justified.