Wellman & Dwire Tobacco Co. v. Ware Tobacco-Works

46 F. 289 | U.S. Circuit Court for the District of Minnesota | 1891

Nelson, J.

A motion is made upon k bill filed by the complainant for a preliminary injunction to restrain the defendant from using a label, brand, and wrapper, so closely resembling the complainant’s trade-mark and labels and wrappers as to infringe upon the complainant’s rights. The complainant, Wellman & Dwire Tobacco Company, is incorporated under the laws of the state of Illinois, and a citizen thereof, engaged in the manufacture of smoking, plug, and fine cut tobacco, and uses a duly-registered trade-mark, in connection with the mode and manner of putting up the packages of its manufacture for sale. The defendant, the Ware Tobacco-Works, is a citizen of the state of Minnesota, and is charged with infringing the complainant’s trade-mark, and using wrappers and devices thereon so that the resemblance is calculated to deceive a purchaser having no-cause to use more than ordinary caution, and that the defendant has copied from the complainant by design. It is clear to my mind that the method of preparing in packages the tobacco manufactured by the complainant for market is infringed by the Ware Tobacco-Works. The similitude of the wrappers, and of the labels, in connection with the combination of colors used, is apparent. While the name “Peach Blossom” used by the defendant to designate his tobacco is not similar to “Sweet Lotus,” the name used by the complainant, the devices on the wrappers make the general effect of the packages the same. The shield or banner used on the wrappers is similar in shape, and of the same general curvature, and, when the tobacco is put up in the wrappers, forms a part of the defendant’s package corresponding to that of the complainant. The entire wrappers and labels so closely resemble each other that dealers and purchasers would be readily misled and deceived. The differences, on critical examination, are capable of discernment and description, but to the eye of an ordinary person who knew the complainant’s packages of tobacco, and never had seen the defendant’s labeled as they are, and not knowing of any such kind' of tobacco in the market, would be misled. The methodical imitation of the wrappers and style of labels appear to be intentional, and not accidental. For instance, when the package is put up for the market, in the center of one side of defendant’s wrapper is a figure like an ellipse, with a circle in which are the words “Ware Tobacco-Works, St. Paul, Minn.” The colors used are yellow, red, and blue. The complainant, on a like side of his wrapper, has an ellipse with a circle in the center in which is a monogram of Wellman & Dwire Tobacco-Works. The colors used are yellow, red, blue, and white; and below the center in each are the words “Smoke and Chew,” in letters of the same size and shape. The upper half of the letters used by complainant is red, and the lower half yellow. The upper half of the letters used by defendant is red, and the lower half yellow, except the “or” is all blue, the background of each is black, and both edges of the complainant’s wrapper are dark blue, with vine tracings; in the defendant’s, light blue, and on one edge two buckles, with words, “Selected Leaf;” on the other two buckles, and the words “Nothing Better.” The sides next below on both wrappers are bounded by blue edges inclosed by red bands. While there are variations, the general effect of the wrappers is the same, and they are enough alike to enable the defendant company to deceive the public, who are purchasers, and interfere, with complainant. Motion for injunction granted, and it is so ordered.