The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1872-10-26
IMPORTANT rsR l1 3 DECISION.

SUPREME CoURr.-Hudson G. Wolfe, ct al,
plaintiffs, against UdoIpho Wolfe Co., de-
A little over q year Il g the plaintiffs com
menced the sale Of an article OF GIN mannfac-
t~ured!bythem, under the name of "Hudson
G.. Wolfefg'Bell Schnapps." ",. 't.'- 2'
The defendant claimed thIs to be an In
fringement OF its trade mark. The defendant
ls a corporation succeeding to the rights OF
the late Udolpho Wolfe In the trade mari.
"Udolpho Wolfe's Aromatic schlsdam
Sohnspps." 5.:sA
prosecution. and sent circulars with s similar
threat 70 their customers throughout the
country. which In many instances intimtdated
their customers.
The plaintiffs, by E: More; their attorney,
commenced q suit In Kings County against
Udolpho Wolfe Co., asking an Injunction to
restrain defendant from thus interter!ngTWlth
their business. On the argument Of the mo-
ton volumLnous afldavts were read, and
the whole matter was fully presented Judge
Gilbert. granted the Injunction. holding the
plaintiffs not gnilty Of any Infringement aud
defendants Interference With their business
AZ the sepottesmlbte:. special term the cause
was tried before Judge Pratt, who fled his de-
oision on the l4th instant. ..
Hudson G. Wolfe, ct al, plaintiffs, against
David 81. Burke, and others, comprising
Udolpho Wolfe Co: defendants. 2
The following fs q copy of his opinion.
Defendants are successors OF Udolpho wolfe,
who in lsA8- commemorative sale OF an article
OF gin under the name OF ."Wolte's Aromatic
Sc6iedam %Schnapps."' -. 10 ~, .a! ~.
The plaintiffs sellan article ofgln under the
name of ''Wolfe's Bell schnapps." and the
principal question to be decided here ID
whether the plaintiffs by such sale violates any
right OF defendants.
~ lu nof oloIunoI fhQf tho +IQhplQ AMI nF6qa
used by the plaintiffs are such an Imitation
that q buyer, using ordinary care, can be mis-
led, and defendants counsel very properly
conceded that no such similarity existed as TO
Justify the court, on-that ground, to interfere
with plaintiffs business as now carried on.
given, iG: appears that Udolpho Wolfe. IN his
lifetime acquired IN exclusive right to use the
word ~'''SchnRpps," as applied 70 o an
article OF commerce In this country.
On this claim defendants case must stand or
fall. The word ~1Schnarps" ia Of foreign de-
r~ivatlon, and 1t has been held that the person
who lrst brings Into our language q foreign
another tongue from acquiring an exclusive
right to nse It as a trade mark.
Rillett v Carlin. IL Abb IN. 81 1885,
McAndrews v Bassett, 10 Jurist 665.
But the plaintiffs deny that Udolpho Wolfe
| first introduced the word 'tSchnappsn Into
Il ub0 I'LL Lu6 uulkc0 oldDCb 90 LILO uhuO VI 0u OF
| coholic liquor, and claim that prior TO lS48 the
| word had become aportlon Of our language,
| and was In familiar use as such a name.
On: the question of TACT the plaintiffs have
introduced several dictionaries, and have pro-
| duced witnesses who testify to that effect, as I
| oonstrue their testimony. They have also
| brought to my attention two popular novels,
written by Captain Maryatt, prior to 1913, In
which the words %'.Scnnapps," p. 'sSohiedam."
ssbottle of Schnspps," ''botLle of ~Schiedam,"
are found In constant use In describing an al
coholic beverage.
The evidence, taken as q whole, convinces
| me that prior to 1848 the word "Schnapps'
| had become q portion OF our common lan-
guage, and was used to denote either gin or a
class Of articles, Of which gin Is one. :,
The question Of law arising on these facts 10
a narrow one, and has been several times de-
| cided. In Wolfe y GoulaId, 10 How, Pr. Rep.
50, 1t was held that no person can acquire 9
| right to the exclusive use OF words as applied
to the name of an article, II In their ordinary
aeceptation they designate the same or q slml'
lar article
In EltrIdge v Wells, 10 How, Pr. Rep. 1856 1t
Is held that a name cannot rightfully be used as
q mark where 1t has become by adoption, and
use, the proper appellatlon of the article
| offered for sale.
In Messerole v Tynberg, sc How, Pr. Rep. II,
the doctrine ID recognized that where a term
Is previously ID popular use lor tne same pur'
| pose q claim to Its exclusive use for such a
purpose will be denied. L.
The reason of the rule is %obvlous-the Ian
guage might otherwise be Impoverished, and
the Community be exposed to Inconvenience
without any corresponding benefit.
It follows from these views that the plan
lifts must have judgment in their favor.
The question Of costs and allowance, and
for a reference to ascertain the damages, II
any, above nominal have accrued, are reserv-
ed until the settlement OF the findings OF, fact
which NAV be heard upon two days notice.
~ For plaintiffs, E. MOORE,
". D. 'VEEDER and
- G. G.. REYNOLDS.
For defendants, MCNEIL d ZEGLIo,
W. BR1TTON and
E. T. GERRY.
HUDSON G. WoLFE6 Co..
No. 10 South William street.
New York,
Sole importers Of Bell s%chnapps.