New-York daily tribune., 1866-04-02
The Trnde. kLnw-Constitcents OF
StIf.Raising Flour.

An interesting case came up in the Superior
Court Special Term before Justice Barbour Satur
day IN the case of John Hecker ct. al. VS.. Nelson
Beecher ct al Hecker Brothers, the makers OF the So
called Se!Rasing Flour, brOg this action against
the defendants for initiating their trade marks Their
complaint sets out that they have for Is years sold te
article OF tta in packages Of various form with
marSed and peculiar labels That they add to the hour
b carbonate OF soda aud phOphoric acd IN the form OF
highly acid phosphate OF lime, which by chemical re.
produced in baking forms carbonic acid gas and
the neutral p5osphates OF soda That by their care IN
procuring pure materials and proportionng them they
have created demand for the article IN ITS several
varieties of Family Rye, Indian Meal &c. each variety
having Its special and peculiar label one OF which has
been copyrighted. Their boxes OF special kind,
and Of peculiar form. They claim that the chemical
materials used by them do but return TO the Hour i'm
poriant and nutritious elements lost In TIE botng with
The bran. and that this addition Ia the peculiar merit
Of the plaintiffs -four which was patented by Professor
HusioTd
They charge that the defendants use a deleterious
substance (ilum). under labels and In boxes. &c.
closely initiated from the eckers as to injurc the
plaintiffs in their business, and ask an Injunction
Mr.. Gerry. on behalf OF the plaintiff, presented THIS
statement to tho Court
The Court-It i, not important whether the defend.
sell article better or worse than the plaintiffs
except TO the question Of damages but the plaintiffs
must show how and whore they are injured.
Mr. Gerry then read the complaint. TO the effect that
they were Injured in their good name &c. ana an
affidavit Of ono Michael Hahn. 10 the effect that the
defendants flour was analyzed by Drs. Torrey and
Doremus but under the suggestion Of the Court that
the quality not important did not read the analysis
Mr.. Spencer said that he desir0us OF showing
that the defendants -four was superior In quality. IN
the absence Of the very element (lIumina) which tho
plaintiffs charged to be deleterous.
The Court held the question unimportant
Mr.. Spencer argued that the plaintiffs not having
produced single affidavit that any one had been de-
ceived legitimate argument that the labels were
OF Mr. Beecher that they had in last December com
menced the making OF sclfraisng wheat -Four alone;
that selfrasng -four well knosn idea, that their
method was entirely different.
The Court HAT Is entirely immat eriaL
That In the latter part Of January. The plaintiffs re-
quested the defendant 10 change their LABEL that ho
there was no Likeness between those original labels
stl they had changed them 80 "a not In any war to
resemble the Plaintiff labels, except In the words
selfraisng -four and the color Of the ink That tins
alteration was made before the SUIT was commenceu.
Counsel then compared the other labels, pointing out
the differences.
The Court-The question ia whether who had
been IA the habit Of buying Heckers -four would not
going into store be mised by the label into belief 1t
was what he had been IN the habit OF buying. For
that reason the form and general appearance are held
important as the words, person desiring TO IN
trodrce at article bound TO that bis labels be not
such a. 10 initiate the label Of the who has made
reputation iOi "a similar article.
Sir Spencer argued that 1t would not be proper 10
enjon them from doing what they had ceased doing on
the mere request OF the plaintiffs befoie the suit was
commenced. But that did not matter much as the
Court had clearly decided they might sell sefrasing
-four by that name.
Judge Barbour-I have decided nothing Of the kind.
an that the plaintiff In not entitled to an In
junction for the name.
Mr. Spencer then argued a. some length that the
name OF selfra.ing -four was weiknown and had bee
used to designate the article before Mr. Hecker com
me need the business. Ho argued that Nr. Heckcr
ella med the Of the words "SGperlauyo Flour
Everything called superistive. Ho hsd no
Tlsht TO the exclusive Of 20 common adjective
The COurt-Yes he has II it 10 of the article
and not mere description Of H.
Mr. Spencer argued at some length that this was not
name but q description.
NJ Gerry replied arguing that the combination of
scripion OF thing in which there WA property The
first inventors own propsrty.
The Court-Herc j. a case suppo.ing that, under
pateui a man calls his machine double stitch ma
chine thus describing the machine. When the patent
expire. Others might sell the machine under the Dame
Of the doubesiitch machine but !! he had called II the
Excelsior machine. that would he a name. trade
mark The Court further illustrated the question by
the qunqnefoa case. whore the plant had but hve
leaves.
Mr. Gerry-That Illustration Is fair here Is quail
ity added 10 the -four. Flour l. not setrasing Of A.
self Tho words seirasing do not apply naturally to
four but s quality added 10 II by the plaintiffs 1t
phrase, which might have Deen used descriptive Of the
article. These We do not claim.
shall confne myself To a few words as 20 the remain
ing point. the similarity Of the labels.
Brother Gerry you need not discuss thnt the matter
IL patent or does not exist II cannot be made moro
clear by discussion.
The case was then closed with few more words
from Mr.. Gerry and Mr. Spencer.
The Court reserved its decision.
Mr. H. V. Abbot, Mr.. Mcneil and Mr.. Gerry for
plaintiffs, Mr.. G. 5 Spencer for defendants.