The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-02-08
T n E COUR s.
1hs yumsl Estate Cass-Dsoision in Bankruptcy
Held on Charge Of Smuggling Old Do
ninion Steamship Company in Court-suit
for Damages by Seaman Decisions
UNITED STATES supaEmE ccusr.

a Oaear Case Of Fulhlmenr Of an Insurance
Contract by ShipOwners-The Lackawanns
CoaA-Who Has an Exclusive Right to Apply
This Name to Coal e-The Delaware and
Hudson Canal Company Claim 1t as Theirs.
WASHINGTON, Fen. 7, 1872.
NO. 90. Great western Insurance Company VS..
Thwlng- Error to the Circuit Court for Massachu'
Betts.-Thls insurance company insured the ship
Ahambra for Thwlng on voyage from
Liverpool to San Francisco the policy con-
tanning this clause:-"warranted not to load more
than ner registered tonnage, with lead, marble.
grain or IRON. ei,her or all on any one voyage.
put back to Liverpool for repairs, and the loss was
then paid by the company. The ship resumed her
san Francisco that the insurers learned that she had
been laden with more than her registered tonnage
Win me articles excepted In the policy This action
was then brought 10 recover the loss so paid. The
answer alleged that certain coal taken on board
ought not to be considered within the exception, as
II was "dunnage" for the rest OF the cargo. The
Court instructed the jury that II the coal was In
Iaot received as dunnage, and not as cargo r would
the contract, although 1t was afterwards sold anu
Ielgnt mad been paid Tor IL by the owner who had
furnished It, The verdict ana Judgment were for
70 this ruling, the planti1s IN error insisting that
e freight was received and paid for the coal. 1t
came within the warranty, although used as dun
mage, and the company must recover. X. H. Dana,
Jr: 1or plaintiff IN error. Bartlett Thaxter, for
defendant.
No. e6. President &C., Delaware and Hudson
Canal Company VS.. Henry G. Clark-Appeal from
She Circuit Court for the Southern District OF New
Hork.-This bill was fled by the company as New
York corporation against the defendant, q citizen
pr Rhode Island, to restrain him from using their
rade NEUTRALITY-SUSPICIOUS. Coal''-adOpted and
used In the sale Of their anthracite coal. They
hege that In 1925 after great expense in the con-
etruotlon OF the canal and IN the purchase and de-
Saopted this trademark for their Coal. by which
khey could introduce 1t TO the favorable notice O.
dealers and consumers as the product OF their
mines and thereby distinguish 1t from the coal of
other parties. 1t was also alleged that high repu.
cation had been established for the coal and that 1t
as sought Tor and commands higher price than al
most any other anthracite coal; that Clark sells
Scranton and Pittston coal as 'Lackawanna cOaI,r
they having the same general appearance OF that
COAL and thereby nIure the company and deceive the
public The answer denied that these varieties OF coal
Scranton and Pit'ston are known by those names
exclusively, and averred the contrary and that they
are generally known as LacKawanna coal, and so
etyled by dealers and the pubic generally; are so
known IN the statistics or the coal trade and that
Ehis company had repeatedly dealt In them as
LackawanDa coal and had sold them TO the defendant
Tor Lackawanna coal. 1t was also averred that the
company nad repeatedly admitted tnat 1t had no ex
Il Issued a circular, in which consumers were eau.
tl0ned against Lackawanna coal not coming
the It's d mns was also his de cCa
under the distinctive names OF Scranton or Pttston
coal, ana averred That his coal was purchased as
coming from the Lackawanna or wyoming region,
end mat II was properly styled Lackawanna coal.
at was also averred that the company had long
Rcquiesced IN this use OF the term Lackawanna by
the defendant. The Court held that whatever right
me company may have had as against CLARK to
the exclusive use OF the words "Lackawanna
Coaln as trademark, its acts III regard
eignate coal sold by him which was not
coal sold by the company have amounted to license
to him to use those words TO designate Scranton
end Pttston COAL ana thus to an equitable estoppel
m fnH OF Qnt m I'm 10 IA IN Ac
here insisted that clear for Injunction was
made out. and that the defendant failed prove
the averments OF his answer. me appellee insists,
as matter of law, that to consulate a
trademark the name must be an invented one
or which Identities the maker with
the article. and cannot be a geographical
name. which others may apply with equal truth
ana have an equal right to use Tor the same pur-
pose. The name must be used distlnctively and ex-
Cluslvely IN order to give title to IL. The right to
q trademark may be lost by abandonment or such
acquescence by the owner in It's use by others as
eitner amounts to license to others to use 1t OF
estOp the owner from complaining OF its owen
ana Nash. for appellants; Fullerton, Knox and Budd
Tor appellee.