Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-03-29
ABOUT A TRADEMARK.
The Azavedos Have Right to tn
Eagle Winery TradeNark

The Azavedos Have Right to the
Eagle Winery" Trademark.
The case of NJ. S. Nevis VS.. NJ. ]. and ]
l. Azavedo was an action to enioin the de-
PENDANTS from the use of the name Eagle
Winery" which is claimed by the plaintiff
as trademark. The facts, in substance,
are these: About 1880 the plaintiff, Nevis,
established a winery at the corner of
Eighteenth and P streets, in this city. He
adopted as the name under which he con.
Quoted the winery Eagle Winery" and
painted the words in large letters across a
considerable portion of the face of the
building. Thereafter, for a number of
years and up TO 1888, he conducted the
business alone under that title, and had
stencils made by which he marked his
packing-boxes barrels, puncheons and
other vessels for the holding and transport
tauon OF his wines with those words In
bis review of the facts of the case Judge
Van Fleet said:
in 1855 he took into partnership with him the
defendants and sold to them two-thirds in
terest in his business. At that time the Office
and principal operating department: OF the
Eagle Winery still remained al Eighteenth and
P streets and the name remained on the build
ing. AT the time of the formation OF this co.
partnership the plaintiff owned piece of prop
erty at Twenty first and streets, where he had
apparatus for expressing his wines, and he had
ceased practically TO express the Juice from the
grapes at Eighteenth and p streets, but there
was not at that time and had not been up TO the
date hereinafter mentioned any designation of
this building at Twenty-iirst and r streets as
the Eagle Winery, either externally or other
wise. The name did not appear on the build
ing at Twenty-tirst and streets at all. The
partnership between the plaintiff and defend.
ants was formed in lsSS and continued until
some time IN 1889, when Nevis sold to Manuel
J. and ]. L. Azevedo, the defendants all his in
terest in the ousinuss carried on at Eighteenth
and streets, including the building a, tina.
place known as the Eagle Winery and all of the
stock In trade contained in the building and
the fixtures aud the paraphernalia that was
used in aud about the business at that place
ana the defendants transferred 10 plaintiff the
interest they had acquired from him the previ.
Gus year in the Tweniy-frst and streets prop
erty.
they entered into contemporaueously with these
transfers, that for two years from that date the
defendants should not engage in the making
and ~holesaling of wines in the city of Sacra-
mento, and that during that time the plaintiff
should not engage in the retail trade. There
was nothing said in any of the transfers nor in
this contract in reference 10 the name Eagle
Winery The transfers are entirely bald of any
suggestion in reference to that name. 1t was
stipulated in this contract that Nevis the plain
tiff should have the right to retain the then
firm name of NJ. s. Nevis < Co, aud it was un-
doubtedly contemplated that both plaintiff and
the defendants should continue in the wine
DuSlUtsS III the city Oi SdCTamSuLo, ana Ildl
Nevis should continue the manufacturing OF
wines and carry on the wholesale wine trade in
the city OF Sacramento.
There was evidence also of attendant circum.
Stances aud expressions given by the plaintiff,
Nevis, tending to show that it was contemplated
by him that he would adopt some other name
than that of Eagle Winery. On the day of these
transfers, and at the time that the contracts and
transfers were signed, when a number of parties
were at the Office OF the Eagle Winery, al
Eighteenth and streets, Nevis was asked by
one OF the parties present, but not one OF the
defendants, what name he proposed to conduct
his business under at Twenty first and streets
his answer was somewhat eygsive he said, 81
viii find a name"
He was then asked "Will you carry It on
heretoiore?" He replied: 81 viii find a name .
That taken in connection with the fact of the
transfer TO the defendants of his stencils bear
ing upon their face the name "Esgle Winery.
and the labels used by him in the office having
upon them the words Eagle Winery and
more especially the building having across It's
face the name Eagle Winery 20 my mind. in.
dependently of the question as to whether the
name would pass by Implication OF law by the
transfer of the realty, clearly shows that there
was an intention on the part OF Nevis TO dis
pose of the name Eagle Winery with the
business. And this certainly was the under
standing of the defendants,
But ] am satisfied from an examination of the
authorities, that independently OF the intrinsic
facts, the name Eagle Winery passed by
the real estate and interest in the business. i
constituted part OF the business, and sub
stantial part of its value,