Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1871-05-18

L sa E 8 ~ef
OPINION OF JUDGE sMALLEY
This il bill in equity in favor Of Atherton T.
Brown and George Frank Brown, parties doing
business in Boston, Mass, under the Arm, name
and style of John I. Browne Son, o. Nathaniel
K. Brown, a Wholesale druggist in this city. In
1867 the defendant commenced the manufacture
of an article of medicine put up in form which
is claimed violates the rights Of John Brown &
Son, and which he sold as the same article that
of the orators, thus causing fraud not only upon
them but also upon the public. The answer of the
defendant admits the making of a similar species
of medicine to that of the orators, but denies
that he has attempted in any way to violate either
the rights of the orators or to impose upon the
public. He asserts that they put up their medi-
cines in parcels of four different sizes or forms,
only one Of which, and that small box common
ly used by all druggists for putting up dry medi-
cines, could the defendant be said to have initial
ed. As to whether the contrivances Of the de-
PENDANT were calculated TO mislead the public, he
would compare the facts in the present case with
those of the somewhat famous English case OF
Croft 0s Day. and alse those in the case of Board
man u.s. Meriden Brittania Co., (35 Conn, 402)
the judgment of the Court in the last of which
cases he considered to be carrying the law as far
in favor of the compliments was possible. In
the first case, the only difference in the two labels
used was the substitution of different drawing
in the center, and the words 80 IL Holborn Hill,
for 81 Holborn, both labels being exactly of the
same size. color and type. In the latter case both
labels were of the same size and color, and the
same figures were used for the same ca7ses OF
spoons, the only difference in them being the
substitution of the respondents name for the pc
titioner's, and the insertion of a single word in
the description of the article. The rules laid
down by the court in these were substantial
~ those adopted by the court in the case of the
"Amoskeag Manufacturing Company gS. Spear, u
q Sand. Supt. Ct. R., $685., and are briefly as
follows: '
First That trade mark emitting the appro-
priator to protection in its exclusive use must by
word letter, sign, figure or symbol, designate the
true origin or ownership of the goods e.
Ssc0nd.-That where trademark is violated,
the essence of the wrong done consists in the sale
of the goods of one manufacturer as and for the
goods Of another, and can only be predicated on
copy or imitation of those portions of trade.
mark which tru'y d. sgnate the origin or owner
ship of the goods. a
IHird.-That a similarity, TO entitltle the orig
inator to the protection of the law, must be such
to amount to a false representation; that the
goods to which the simulated trade mark is at
tached are the manufacture of him who first ap-
propriated the trademark.
Foagh. That although the goods have become
known as those of particular manufacturer by
reason of a long continued use of certain words
or symbols which were not designed to indicate
the origin or ownership of the goods, such fact
cannot alter the orignal meaning of the words OF
symbols, or intent with which they were first
used, or take from others the right to employ
them in the same sense. SD
FYfh.-That in case of violation of trade.
mark consisting of false declaration by an imi-
tation, exact or otherwise, of those parts of il
which indicate the true origin of the goods if il
is manifest that resemblance exists which was
designed to mislead and has actually misled the
public, judicial restraint may interpose.
Sirth.-That the name and address of the man
ufacturer used by him as trade mark may have
connected with it some peculiar device or symbol
adopted auxliaries to them in declaring the
true origin and ownership of the merchandise
and a wrongful violation of such trademark may
be accomplished, even though the imitors name
be substituted for the original manufacturer, by
such an in itaton of the peculiar device, or sym.
public.
Applying these principles of law, width have
been recognized and aft med by subsequent deeis-
ions, to the case in hand and admitting that the
orator claims that the respondent has only i'm
itated one of these modes of putting up then
medicines, we will compare the two in detail, and
see if we can discover any sufficiently perfect i'm
itation of the orators trademarks as to mislead
the unwary public.
We must first admit that the respondent has a
right to use his own name on his merchandise
On the top of one we find the coat of arms Of
Massachusetts,. and around it the name Of
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 entirely different type, browns Bron-
chials." In the one case the word bronchial is
used as an adjective, in the other substantive
The autograph of ''John I. Brown g. Son. is on
the one and on the other that of "N. K. Brown
On the other side of the boxes appear the general
announcement of what the medicine is to be used
for. but after careful examination fail TO de-
tect even the slightest imitation of the type OF
the text used while on the box of the respon-
dent only appears the directions for the use of the
medicine, with the price of the box. The two
places of manufacture of the respective medicines
are distinctly set forth, the at "No. 425 Wash
ing ton Street, Boston," the other at burlington
Vermont"
After noting other diff sre1 ces Lis Honor said
II wholly fail therefore to detect in one copy OF
imitation in any single particular of the other.
On what ground them can it be claimed that the
respon1 ent has violated the orators trade marks?
1t falls infinitely short of the principles of law
already cited in similat cases. Not even would
The mos ordu airy observer be deceived. And
when you further examine the four styles of ad-
vertise ments which the respondent 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 his
name is an. X. Brown" and that he resides in
Burlington or Moatpel ,er, Vt, as the case may
be- ard that one these eli culars are inserted in
each of the respondents boxes, feel confident in
say iDg that in my opinion, the orators have fail
ed to make out case, and their motion for a
preliminary injunc ion should be denied with
costs.
SABBATH SCHOOL TEACHERS INsTI-