Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1871-05-10

be such as to amount to false representa-,
lion that the goods to which the simulated
trade mark is attached are the manuiacturs
of him who first appropriated the trade
mark.
Fourth.-That although the goods hay'
become known as those of a long continued
use of certain words or symbols which Wer'
not designed to indicate the origin or Own
ership Of the goods such fact cannot altel
the original meaning of the words or sym
bols or intent with which they were hrs
used, or take from others the ght to EN-
ploy them in the same sense.
Tf!h-That in case of a violation OF {
trade mark consisting of a false declaration
bv an imitation exact or otherwise OF thos'
parts of it which indicate the true origin o
the goods, if it is manifest that resem-
blance exists which was designed to misleaC
and has actually misled the public, Judicia
II straint may interpUse.
SiZth.-That the name and address OF the
manufacturer nsed by him as trade marx
may have connected with it some peculiar
device or symbol adopted as auxiliaries tC
them in declaring the true origin and own
ership Of the merchandise, and wrongful
violation of such trade mark may be ac-
complished, even though the imitator s
name be substituted for the original manu-
iacturer by such an imitation OF the pecu
liar device OF symbol as would Indicate de
sign to mislead the public.
Applying these principles OF law, which
have been recognized and affirmed by subse
quent decisions to the case in hand, and ad
hitting that the orator claims that the re-
spondent has only initiated one Of these
modes of putting up their medicines We viii
compare the two in detail and see il We car
discover any sufficiently perfect imitation
of the orators trade marks as to mlsleaC
the unwary public.
We must first admit that the respondent
has right to use his own name on his mer-
chaIdise. On the top of one we find the
coat OF arms OF Massachusetts,, and around
it the name .. Browns Bronchial Troches.
On the other the coat of arms of Vermont
which bears no resem blance to the former
and above and below it the words in entire
ly different type, " Browns Bronchials.
In the one case the word bronchial is used
as an adject ire, in the other a Substantive.
The autograph Of Y" John l. Brown x Son
il on the one, and on the other that OF IN
K Brown On the under side Of the
boxes appear the general announcement OF
what the medicine Is to be used for, but
after a careful examination | fail to detect
even the slightest imitation of the type or
the text used while on the box Of the re-
spon dent only appears the directions for the
use OF the medicine, with the price OF the
box. The two places OF manuiact ure OF the
respective medicines are distinctly set forth,
the one at - No. 42j Washington Street,
Boston, " the other at " Burlington, Yer
mont.
After noting other differences, his Honor
said e. wholly fail therefore 10 detect IN
one "A copy or imitation in any single partIc-
ular of the other. On what ground then
can il lie claimed that the respondent has
violated the orators trade marks 1t falls-
infinitely short OF the principles OF law al
ready cited in similar cases. Not even
would the most ordinary observer be de-
ceiyed And when you further examine the
four STYLES Of advertisements which the re
spondeut has issued, IN which he especially
calls his medicine a new remedy for colds,
etc. in distinction from the old, and calls
particular attention To the fact that hls
name IL 3" \. X Brown and that he re-
sides in Burlington OF Montpelier, Vt, az
tile case may he, and that one OF these cir
cuiars are inserted in each of the respond
ent-s boxes, feel confident in saying that
in my opinion, the orators have Jailed to
make out "a case and their motion for a pre-
hmnary injunction should be denied with
costs.