Daily Davenport Democrat. [volume] (Davenport, Iowa) 1864-1874, 1867-11-12

that at The sitting OF the IouFt OF Cnancefy
held here in May iast.a suit wAs brought By
Messrs. Perry Davis & Son, Of Providence,
against Mr.. James Kennedy. Of this city. to
restrain the use of the trade mark Pain
killer, (which they claimed 70 be their prop
crty. The suit has bten decided in favor
OF Messrs. Perry Davis 3 Son, and as the
case 10 Of general interest. We give short
statement Of it. Mr.. Kennedy resisted their
suit, denying their right TO the trade mark,
and contcnding ths. even II they were the
proprietors thereof, what he had done was
not an infringement. The plaintiffs pro-
duced great number Of witnesses from the
uaited states and Csuads 10 support Of
their case. One Of these, Mr.. Jso. b. French,
OF Fall River. Mass. proved that he knew
the late Perry Davis since 1923, that he
purchased "Painkiller" from Perry Davis in
1910 or le4l, that 10 found reference 10
his books, in lsA2, to dealings in "Pain-
ki!ler," (.he prior tfanesctions" having
been smAh did not appear in his books; he
also proved that tho name ..psinkillss" was
6st invented ~ Perry Davis, thAl 10 bad
meyer before heard Of the name.of "Paia-
siler," that heshsd dali In he article ever
since, and still dealt in il, and throughout
The whole period it has always been vnder'
stood and believed by the trade s0d the
public that Perry Davis wss tine isventos 81
"Painkiller," and that rs . fact whenever
"painkiller, is asked for the medicine OF
Ferry Dsvia & Son is that which 10 meant
and il supplied without further inquiry
Tbi, evidence was corroborated by Mr.. Rad.
vay. the well known proprietor Of "Rsd-
WAYS Ready Relief" Messrs. $. W. Fowle
and :. Carter, Of Boston, Mr.. ii. II. Bur
ripg;on, Of Providence. and by number Il
others from the United States. and also BY
evidence taken ut Providence under q COM
mission.
The plaintiffs also called Mr.. J. W.
Bckle, and Mr.. George Rutherford, drug
gists, Of Hamilton, and DR.. Picsult. Of Mon
trcel, who proved that Painkller was Rrst
introduced Into Canada by tho firm Of PET
~ Davis Il Son." that "Painkiller' meant
the medicine Of the plaintiffs, that il would
BE- supplied simply on the order for Pain
killer. without further designation, and that
the me iicinc Of the defendait could not BE-
sold in any considerable quantities il The
| word ''PAinkillet' was not coospicususly
displayed on TIC bottles RE plsiatids
also proved that after their medicine had ae.
| quired popularity and large sales, limitations
were made by various parties. bot these
had now disappeared, some having been
stopped after suit, but the rest having abau.
donsd the business after having been threat.
snsd with precsrdiDgs.
| Dsfentlsnt con tended that, o. he dssienas
ted his medicine "fhe Great Home R.mc.
dy, Ksnnedy's painkiller," and the bottles
and their general appearance were - differ.
ent. no person with the two bottles in lis
hands could be deceived.
Defendant also called witnesses TO con-
trovert the testimony Of Msssrs. Bichle,
rutherford. and other druggists called BY
| the plaintiffs, but several of these witnesses
proved that the plaintiff medicine was for
years the only 'Painkillsr" in tho market,
and that il was only since the defendants
wns introduced that persons who asked
for "PainkIller' gave the name Of the
maker.
The hearing OF the case occupied the
Court nearly two DAYS. Mr.. Bake. z. e.,
aud Mr.. Edward Martin, were couassi Tor
the plaintiff and Mr.. Proudfoot for the de-
PENDANT.
Tho Vice Chancellor delivered his judy
ment ON tho Sd Of September last 10 favor
OF the plaintiffs, granting q perpetual in
Junction against the defendant ia any way
using the trade mark "PAinkiller," and or
dering hin, forthwith to destroy all dies, Ia
5cls, wrappers and printed papers in his
possession. power or control, upon which
The Plaintiff said trade mark, 'PainkiIler, >
ISSUED. and demanding him to pay to the
plaintiffs the profits he had already made
by the use OF the trade mark, and also the
cost Of sui.
The following extracts from the judgment
Of the learned Vice Chancellor give the
points chiefly discussed, and his decision
thereon
The defendant contends that what the
plaintiffs call trademark is not properly
a trademark, but term OF description Of
the article which he prepares. do not
agree in this. / take the words to fall
within tho class Of trademarks usually cali
Ell fancy names or trademarks, whioh arc
arbitrarily selected by an inventor or man.
ufacturer 10 catch the eye or ear Of the pub
Ito, and to distinguish his article from 9th.
ers Of the like nature. Il is true that the
term Psinkiler IS not suggestive Of the use
Of the medicine, but it 10 not an adjective,
nor Is i Used adjectivcl,. IL is n quaint
combination Of words never probably used
together 6e.cre, forming name by which
the inventor desired his preparation should
be known, and calculated, as he rightly
judged from its qunlntness. to Ex itself in
The memory of the SeDeral public.
Il come now to The principal question in
the cause, namely, whether the deyendant
has irtiineed he PLAINTIFF trademark
Ito has been for several years the manufae.
tarer and vcnder OF preparation to which
be ascribes many OF the virtues which are
claimed for the plaintiffs, and 10 which he
has gwen the designation Of "Psiukillsr."
i. he had used that designation alone il
would be . tisgraut infringement Of the
plaintiffs right. But il 10 contendcd that
purchasers. The defendants article ia
spoken of by druggists in Hamilton a. frat
known in the trade wishin the last five
ears. The defendAa. says he made and |
il in . local paper Gin Dundas)
some , ears before. Il is evident that 1t
= N obseursly known until later dats; but
sven ct the earlier date the plaintiffs arti |
lie had obtained . great reputation and |
very large sale, under the name Of the |
'Painkiller,' sometimes with and some |
limes without the prsfix Of tho name Of the |
maker.
"Didsrences are pointed out between the |
appearance of thu bottles and ths labels in |
y hich respectively the article Of the plain
liifs and that Of the defendant are cold. To |
The eye there is an obvious difference whom
the two are seen together, and they are not |
called by the same name, the plaintiffs ar
liclc being called "Perry Davis Vegetable |
PainkdIes," while the Defendants 4 ealIea |
= The Great Home Rcme.y, Ks re
Painkiler." Tho grievance Of CT st |
% Of eossse W. - of the wsrds e ill- |
~
III 1hiuk sprsvsdso dsnons1atioo that
IN many instances il 10 not too much to |
eey 10 vast number Of instances. the de- |
lssdaots article has been putcAcsel Be. |
sause il bore the nans Of ..PSin hilles.r
whsn but fos It's bearing that name II would |
haze esohlhd phinti6' 70 abide Nbal would |
have been aold.
1T was. think. enphatically the uord |
"Psinkiller" that was the distinctive trade |
mark, but taking tbs whole 70 b the tredS |
mark, the appropriation Of the term ssPxin
khier' would be an infringement. It il
nH tta Il