Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1878-01-14

tia tr til sly source .vsls#I. % hem other
thar Dltl ar.
Su.h 4 practice necessarily dec:ives sverv
pu-chas.r sho, 10 putsha=los this "Dur|t1m'
nj. king tcb.cc,. b. lisv=s that 6t Is puTchss 5.
| lag the f1e tobacco put up in Tie plsc. Of hat
name 10 North Carolina DibrelI 70. CAIN
soleIc from Virgin. What. thea, i, virgins
lille usdsr with this DIGESTION comas about?
He clsins h1t he Gid rn', 10 1850. sci his
right 10 the label used by Morris t. Wright, 10
his partner, Norris uhen Le sold all his inter.
e., IN he business. lie cia:ns that h. derived
the word Du; ham sni tie device Of short,
horn bel !roal a Durham mustard box. lie
prateuds that ueiher the vera oar The device.
as invenrei aud uSsd by han, YES descriptive
or geographical 10 purport bat that t5c5 We're
| arbitrary symbols, anI that having been SO at
the begioninr, lie and his assigue's have still
| right 10 use them.
The oliactioo TO this profession lies not
merely 10 the niprobability Of the origin of the
use Of the word Durham aul its symbol which
| W,isht recouot>, or 10 The unsatisfactory char
ae;er # tue evl1aLc, 90 which his orr gna
right 20 use tie wcru and its syutol is based;
or Ia the pr'sunp!on that when be sold 10
| iSGl h1 odd ali biz interest 10 Morris; tut 1t
lies als0 in ihl>h tao Iacts, namely: ls,. that
whatever title Wris ia. bal 10 the use OF the
w,r3 Dlrham after leaving Morris, 10 or about
th, year lSbl, was los: By non use. his di>u'e
contiuuibs through period Of probably eight
cr 5i7, wears after he I9ft the ric!aity Of
| Durham ael, p. that during this ons
narjoi OF iisuS, the braoi of Durham
| sDl9kilg tobacco acquired dein.c aui
pecusr meaulue win dealers AMI can
suners: the woEd Durham ceasiog to be
(eveo II l. ever was, mere arbitrary term /;
sni had cbtanoI Il geographical sgnlhcalioo
as to the place-Dlrfan, and conm~rcial
si.niG tattoo IS to the article OF tobacco maou.
featured at Durham. During The interval tt
disus, the phrase Durham Tobacco had come
TO Indicate that portion OF the produc. OF a
particular reeioa of couotrg which was market
ed a. the pIac. called Durhnnss or Durham.
| The phrase Durham smokiog tobac.o' had
come to indicate 10 all markets ana among all
daal9rs and consumars the sinking tobacco
! marketed and manufac ureL st this pIac. OF
Durham, 10 North Caroba.
I: was cot uolil after this Specification had
attached to the phrase" that WIish. adopted,
for a. he prctcud4, returned to- the US oi
the word Durham. which lie had abaoiooei.
IF, as he claims, the Word 1ham had 10 fact
| been used By him at first as an arbitrary trad.
mark and it, 10 adji!ioo, he had continued
the use Of il without inter- upton down to 1866
| aud on 10 the present time. that use by him
| would Itself have prevented the other aod local
| senticaton iron affecting 10 the bran | and
word; Tor, 10 that case, Durham smoking to-.
bacc) would b ave dccribej.t,CO TOD lccoS first,
| those mark I'd aud 10 aoutactur.d at Durham,
| and second. thcs. ~prltkich with Wright g
"Dwhdm' juice.
| But be did abaojoo ITS use be stood by for
some eight years ADD allowed peculiar CON.
| mcrcial and local Specification to attach to the
word Durham as desert ptlre OF smoking tobac
CO. aud not uotl after that local and c1mmer
ca siyniicalion had c)me to Identify the tobac
CD lab .Ied with the word all over the c2uotry as
coming from particular region. and "a haV-
ing paricu ar qu1lltS; and, DOT uot,l after
| this braud had come to be worth tboCssDds CT
dollars to the manufacturers OF this particular
| tobacco st th!: particular place, did ne begin
Tor resume) the use of The device, which be
claims to have derived from the mustard Gao.
10 nut that word DOW on tobsccos grown else
| where than at Durham, even though spfnkIed
with bis Durham decoctio0, is, 10 the light
Of the evidence 10 this case, to pass them of
az tobaccos coming from Durham, and Is to
deceive and defraud all who deal 10 and pur
chase the commodity as smoking tobacco from
| Durham, 1t has so come to pass, from Wright
| non use for eight years, that.to manufacture and
sell other toUaccos oil md brand them with the
word Durham is to deceive the public, no matter
| what liquid may be used on them. Under existing
| circumstances, 10 manufacture even Durham to-
baccos elsewhere than at Durham, and TO sprinkle
| them with a foreign liquid, is to deceive the public
generally and those who put 10 the genuine article
| at that place particularly. The manufacture OF
these tobaccos at that place is the best guarantee
which the public and the trade can have that the
commercial article labelled Durham sn.okingto.
bacco and sold in all markets. is genuine, and pre-
pared under the fewest temptations TO aduteratlon
| That the right to trade mark may be lost BY
abandonment or disuse is too clear to need argu-
| ment or the support of authority. The law of the
| subject is stated the chapter on Abandonment,
| sections GA 10 GJl of Browne on Trade Marks
1t cannot be pretended that in Green's first use of
his label, in 1865 or 1866, he had any intention Of
Ia king up an old label second hand, OF had any
knowledge or belief that Wright, or any one else,
could claim the label which he then devised as en-
tirey novel and peculiar. The field open to his
enterprise and invention, for establishing his bust
ness and inventD his label and trade mark just as
| hc did.
| Green's adoption in lSCj or 1866 of the word
| Durh0m, as descriptive Of the best tobacco of
North Carolina, put up by him, and Of the bull as
a symbol Of the word, was naturally suggested by
the facts Of his business. II Wright had ha,;
such label, which do not feel that the evidence
warrants US TO believe, it was in 1866, unknown
| in Durham; had been abandoned even then for
| some four years had never signfed anything but
| tobacco sprinkled with Wright's decoction and
had never borne the valuable and creditablc COM
| mercal sgnihcatiUn which the climate and soil and
good hnshandry Of North Carolina and the enter
prise Of Durham manufacturer were about TO
give it,
By the several facts, of WrighL's nonuscr Of the
label for eight years of its never having, even as
claimed by him, had any but an arbitrary sIgnih-
canoe as tobacco sprinkled with species OF arth-
cal trcakle; and Of its having, during long
period of disusc, acquired a new, wholly different,
and well and widely known geographical and COM
mcrcia Specification, Wright lost HIS right of using
the label altogether His of it now operates
necessarily to misead and deceive the public as to
the of production and quality of the article
bearing the label, thereby defrauding them and
the court will therefore make decree of perpetual
Injunction against his further use of it.
II. As 10 the second question, whether Blackwell
s. Co. have an exclusive right to the use of the
label described in the pleadings, think, on the
evidence submitted, that they have We have no
hesitation in SO deciding as against the defendant
in this cause, and will incorporate in the decree of
the court order for account of profits against