63 F. 438 | 7th Cir. | 1894
(after stating the facts). The complainant, Hygeia Sparkling Distilled Water Company, seeks to restrain the Waukesha Hygeia Mineral Springs Company from use of the word “Hygeia” as a trade-name for its waters otherwise than specified in a contract entered into August 20, 1886, between complainant and defendant’s predecessors. The defendant (appellant here) seeks to ignore or avoid that'contract, and claims prior appropriation of the word, as the distinguishing name of its waters, and prays, by cross bill, for an injunction restraining the complainan t from using the Avord in its corporate name or trade-mark.
The controlling question in this controversy is whether or not the contract is operative between these parties for the purpose of establishing and defining their respective trade-mark right.s, in con
Infringement in this case is undisputed. The single word “Hygeia” is used by the defendant for the Waukesha water, upon labels and advertisements, without any of the other words designated therefor by the contract, and duplicating the complainant’s trade-name. If the Smiths were thus infringing, the relief prayed for would he granted as a matter of course, under the operation of the contract above expressed; and the only question which remains for consideration is whether the same rule is enforceable against the defendant, a purchaser, in 1891, of the property and rights of the Smiths in the Waukesha water. The claim is made in behalf of the defendant that the contract is not, operative against it (1) because of a bona fide purchase without actual or constructive noiice of its terms; (2) that it should have been recorded in the patent office, under the trade-mark act of 1881, to make it effective against an innocent purchaser. Neither of these propositions is tenable.
The appellant urges as a further objection to the decree that the appellee must be barred from any relief because it is disclosed that at some time during its inception the trade-mark was employed by parties in the name of a corporation, when there was no corporation in fact, violating a criminal statute of the state of Illinois (section 220 of the Criminal Code), which imposes a fine “if any company, association or person puts forth any sign or advertisement, and therein assumes, for the purpose of soliciting business, a corporate name, not being incorporated.” This statute has no application here, even if it bears the construction for which appellant contends, for the reason that the fact is undisputed that the complainant was duly incorporated, under the laws of the state of Hew York, in the year 1885, prior to the execution of the contract in question, and therefore the alleged premature illegal assumption of corporate existence was beyond the scox>e of inquiry in this case; a,nd for the further reason that the acts do not appear to have been committed in the state of Illinois, or after the commencement of business therein, and were lawful in the state of Hew York. There is entire absence of any showing of fraud, and we find no ground for this objection, either under the statute referred to or any rules of equity.
Ás stated in Canal Co. v. Clark, 13 Wall. 311: “The office of a trade-mark is to point out distinctively the origin or ownership of