Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1871-05-18
AMOUNT AND KIND OF CLOUDS.
The Law of Trade Marks.

The Law of Trade Marks.
Editor Rutland Herald An import
ant decision has just been rendered in the
District Court of Vermont by Judge
Smalley, which has collateral relation
and application to Fother litigation now
pending in this section. The case involv-
ing question of trade marks, was made
between John /. Brown & Sons of Boston,
manufacturers and proprietors of"Brown's
Bronchial Troches" and n. K. Brown OF
Burlington, proprietor and manufacturer
of "Brown's Bronchials" The case is one
of so much Importance 1 am constrained
to ask its publication in the HERALD. 1t
will be seen from reading the opinion Of
Judge Smalley that the question was the
application for an injunction against n.
x, Brown on the plea that in the name of
his goods and style of putting them up
he trespassed upon the trade mark OF
John l. Brown g. Sons. But Judge
Smalley says that man has the right to
use his own name in the manufacture and
sale of his goods, and that as in one case
the word " Bronchial was used as an ad-
jective, and in the other as substantive"
and further that as the packages of one
bear the imprint of John I. Brown & Son,
and those of the other N. K. Brown, Bur-
lington, there was not similarity enough
in the names to mislead the public, and
that therefore there was no infriu cement.
The application for injunction was there
fore refused.
In as much as some months since, the
HERALD editorially reviewed case in
your county, and as this decision has a
practical bearing upon the case now in
litigation, viz: Batcheller and Sons
against Batcheller Manufacturing Com
pany you will have the courtesy to allow
me to draw parallel between the princi-
Piles laid down in Judge SmDlley's opinion
and the case referred to.
First. The claims in the two cases are
similar. John I. Brown u Son, manutac-
ture an article, and n. K. Brown, manu-
featured the same article. The former en-
deavorsd to enioin n. K. Brown from the
use of his ow nname. BAtcheller and Son,
manufacture Forks. The Batcheller Manu-
Company manufacture the same
article. One of the Batcheller's has an in
terest it the company and allows the use
of his name by the company as title
name for their company. Judge Smalley
to the use of his name in the manufacture
of the same goods as John L. Brown q
Sons. By the same reasoning has not 1.
G. Batcheller right to become Que of a
company, and allow the use of his name
to the company and to manufacture the
same'goods as ,tcheller & Sons.
Second. The Brown Sons claim that
N. X. Brown copied the shape of their
labels, and the general style of their
printed devices and symbols upon the la
bela, and claiming thu devices, name and
symbols are their trade IN ,rk. Batcheler
& Sons cl aim that the Batchelrr Nan ufac-
turing Company use the shr.e device and
label which is their trademark. Judge
Smalley decides that there is such di-tinc-
ton in these labels and devices, and are
so distinctly marked as not to be an imi
tation, and that N. K. Brown his the
right to the use of his devices. So, too,
it must appear to any casual observer
that the plainly printed labels, B4tcheler
& Sons, and the Batcheler Man uf4cturing
Company. are so plain rs not to mislead
the public. Therefore, under Judge
Smalley's ruling, the labels of the Batch
eler Manufacturing Company cannot be
called an infringement of the trademark,
1t seems to be settled as a principle by
Judge Smaley's decision, that the l. G.
Batcheler has right to the use and to
the benefit to be derived from his business
tact and enterprise, and to the use of his
name in connection with any business or
labels, although other parties of the same
name may be engaged in the manufacture
of the same goods. 1t seems to Us that by
concurrence of the facts and parity OF
reasoning, the case of the Batcheler Man
ufacturing Company should be placed up.
on precisely the same principles of law
and equity as laid down in the decision
of Judge Smalley in the case of Brown &
Sons vs. N K. Brown. IS"
STATEMENT OF CASE.
1t was motion for preliminary Injunction,
based upon bill in Chancery brought by Messrs.
Atherton T. and George Frank Brown, of Bos-
ton, Mass Us. Nathaniel K Brown, of Burling-
ton, asking for an Injunction against the defen l.
ant for violation of the orators trade mark
z z Of ,ial