130 F. 514 | 7th Cir. | 1904
after stating the facts as above, delivered the opinion of the court.
The appellee sold the product of William Henry Baker in the exact form of package and style of label sanctioned by the decrees of the courts referred to in the statement of facts. He had purchased from William Henry Baker the product in the form and style which those courts had authorized Baker to make and sell. To that extent the appellee, we are disposed to hold, was justified.' It must not, however, be overlooked that the word “Baker,” as applied to chocolate and cocoa manufactured by the appellant, had in the course of years come to represent to purchasers the product of Walter Baker & Co., and was so generally known to the trade. The appellee had largely dealt in those products, and was well informed of those facts, prior to the time when he undertook the sale of the product of William Henry Baker’s manufacture. It must also not be overlooked that William Henry Baker instituted his business and applied the name of “Baker” to his products fraudulently, with the expectation of profiting by the trade-name of “Baker,” and in the hope of diverting to himself some part of the trade which legitimately belonged to Walter Baker & Co., Eimited. We must therefore deal with the conduct of the appellee in the marketing of this product of William Henry Baker in the light of these circumstances. ^ He had the right, as we assume, to sell that product, but honesty and good faith required that he should not palm it off as the product of Walter Baker & Co.; that he should not represent it as “Baker’s Chocolate” or “Baker’s Cocoa,” for that meant to the purchaser that it was the product of Walter Baker & Co., Eimited. We need not be diligent to assemble the many instances
Prior to this suit the appellee advertised the product of William Henry Baker as “Baker’s Chocolate” and “Baker’s Cocoa.” This was done because the name “W. H. Baker” was a new name, and the advertisement in the original name would draw the custom of persons acquainted with the product of the appellant. This was seeking to use the reputation and the good will of the appellant in the sale of the spurious product, and was an efficient means to that end. This was as much a fraud as an actual oral representation to a proposing purchaser, and should have been enjoined. Singer v. Wilson, L. R. App. Cases, 389; Jay v. Adler, 6 R. P. C., 136, 139; Mitchell v. Williams, 106 Fed. 168, 45 C. C. A. 265.
The remaining questions arise upon the directioxis of the decree with respect to an accounting, and the report of the master thereon, confirmed by the court.
First. The court adjudged that the complainant should recover of the defendant profits which the defendant had made, and the damages which the complainant had suffered, through the defendant’s violation of complainant’s right, as decreed, since May 1, 1900. The complainant below excepted to so much of that decree as limited the accounting of profits and damages by that date. This date was an arbitrax-y date, and no reason is suggested in the record for its selection. The evidence discloses that from December, 1898, there had been repeated infringements of the complainant’s right, and, necessarily, resulting damage. The complainant was entitled to full compensation for the injury sustained. We perceive no reason why it should be debarred of recovery for the time prior to May 1, 1900. In that respect the decree was faulty.
Second. The proofs adduced to the master had reference oxily to the profits accruing to the defendant from the illegal sale. The question of the true measure of damages in ¿ases of this sort is an interesting one. The injured party is entitled to full compensation for the injury, but how shall that be measured? Manifestly, the profits which the infringer has made would not in all cases be compensation to the injured. The latter’s loss in part inheres in the failure to acquire a just and deserved gain; also in the injury to
The failure to receive adequate compensation for the injury done in such case proceeds from the act of the party in seeking recovery for the profits made by the wrongdoer, rather than the loss sustained by the injured party.
The decree will be reversed, and the case remanded with a direction to the court below to render an interlocutory decree pursuant to the prayer of the amended bill, and to ascertain, according to law, the loss, injury, and damage sustained by the complainant, and to decree accordingly.