The Hawaiian gazette., 1888-05-22
TRADE MARK INFRINGEMENT

Below viii be found the report of
an important judicial decision,
copied from the San Francisco -4lta.
tits of local interest from the fact
that the case originated in Honolulu.
The authorized agent Of Benkert,
plaintiff IN the suit, discovered that
shoes were being sold in this city,
not Of Benkert's manufacture yet
bearing his trade mark Information
was promptly sent forward by the
agent, but 1t was q year and half
before Benkert traced up the firm
that was illegally using his trade
mark. The result of the prosecution
Is stated in the following report:
An interesting decision was rendered
by United STATES Circuit Judge Sawyer
yesterday, in which the right of a mer-
chants trademark were clearly de-
fined. The case decided was that of
William J. Benkert against Samuel
FEEDER ct al, and judgment was rem
dered in favor of the plaintiff. The
suit was brought to. recover damages
for the infringement of the trademark,
&C. Benkert & Son. used by the
plaintiff, doing business under that
name, as the successor in interest of
Philadelphia firm, OF which he was an
original member, engaged in the
manufacture and sale of boots and
shoes upon which the trademark was
stamped. The testimony showed that
the defendants used the mark upon at
least $50 dozen boots and shoes sold
by them. In his opinion Judge Sawyer
says:
The defendants insist that the meas
ure of damages, or profits, should be
limited TO the difference in price for
which the goods would sell with the
trademark upon them, and the price
for which the same goods would sell
without ii. ] am unable to adopt any
such rule. 1t would be exceedingly
indefinite and equivalent to giving no
damages, or profits at all. How would
il be possible for any one to say how
much less a pair of boots or shoes
would sell without, than with the
trademark upon it. There would be
no definite measure of compensation
for the injury. One who deliberately
and knowingly uses another trade
mark commits q palpable and unmiti-
gated fraud, and puts his own goods,
for which there is no possible excuse.
He seeks to avail himself of the. good
reputation of another's goods, usually,
If not always, of an inferior quality,
upon the market, thereby not only
fraudulently cutting off the market
from the party, who has, by years of
labor and at great expense, established
2 reputation for his wares, but in addi-
ton to this injury destroys, or INJURIES
largely, that reputation which is the
foundation of the owners business, by
selling inferior goods under this trade
mark. To adopt as the measure of
compensation for such injuries, the
difference between the price for which
the spurious goods would sell without
the trademark, and for which they
viii sell with il imprinted thereon,
would be a mockery of justice.
In my judgment the infringer should
1t least account for the entire profits
made upon the goods wrongfully sold
with the trademark impressed there
on. There may also be damages be-
yond the mere profits resulting TO the
owner OF the trademark infringed,
which he may recover. l do not think
there is any Just analogy with re-
spect TO profits and damages between
the infringement of trademark and
a patent for an improvement in ma
chine. a machine may embrace in
ventiOns for half dozen improve
ments, for each of which there is q
patent held by different individuals.
One machine might infringe them all.
In such case each would be entitled TO
recover the profits attributable TO his
own invention, and not the profits
made upon the machine as an entirety.
There is no analogy to such a case on |
the infringement of q trademark. |
TIE intringer fraUdulently attaching