195 F. 568 | N.D. Ill. | 1911
(orally). Defendant objects to the issuing of the writ:
First. Because the bill is sworn to upon information and belief. Inasmuch as the equities of this case may be determined upon the physical exhibits produced and made a part of the bill, it will be unnecessary for this court to determine whether the verification of the bill is sufficient to support a temporary restraining order.
Business men, clearly, would not be deceived by an examination of the exhibits in this case. Dealers know from whom they are buying and what they are buying, and are seldom, if ever, misled, except by nearly exact counterfeits. The defendants do not represent their goods as that of the complainant. They do, however, sell their goods at a lower price, and by simulating the complainant’s cartons, boxes, and packages, they have,, without making any false representations, put it in the power of the less scrupulous traders to impose upon the public, and to dispose of the cheaper article as the article of the complainant. The court does not require, in cases of this kind, proof of fraudulent dealing. If the devices and methods of the defendants are so similar to those of the complainant as to be calculated to deceive the casual purchaser into buying the goods of the defendants as the goods of the complainant, a court of equity ought to enjoin the defendants from a further prosecution of their methods of doing business.
No reasonable explanation is offered by the defendants of why they have adopted substantially the devices of the complainant. It is not shown that the gum business could not be successfully carried on by different shaped boxes and packages, or by different color schemes and lettering. This court is of the opinion- that the similarity between the defendants’ boxes and.packages and those of the complainant is not accidental. The action of the defendants appears to have been deliberate, and, no explanation having been offered, the •court cannot escape the conclusion that it was done for the sole purpose of gaining some unfair advantage by trading upon the established reputation of the complainant.
On the authority of Charles E. Hires Co. v. Consumers’ Co., 100 Fed. 809, 41 C. C. A. 71, Lever v. Goodwin, L. R. 36 Chancery Division, 3, Reddaway v. Banham (1896) Appeal Cases, 199, and Tar-rant v. Hoff, 76 Fed. 959, 22 C. C. A. 644, the motion for a preliminary injunction will prevail, and the complainant may prepare -an order by which the defendants, their clerks, servants, and agents, are restrained, during the pendency of this suit, or until further order of this court, from manufacturing, selling, advertising, offering or announcing for sale, or supplying, chewing gum in packages, or boxes, under labels substantially identical with or like the boxes, packages, and labels of the complainant, employed for that purpose, or in boxes or packages, or under labels which are calculated to deceive purchasers or consumers into the belief that the chewing gum manufactured by the defendants is the product of the complainant, or which will enable others to substitute or sell the product of the defendants as and for the product of the complainant.