Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-07-18
OPINION PER CURTAIN,

This is a close case.
Aside from the Masters report and find
ing, the Court would probably have found
that the labels of defendant are not likely
to deceive the ordinary purchaser. 1t is
easy to see that to the practiced eye of an
artist, the labels are so dissimilar in color
ing, in arrangement, in names and devices,
that he would suppose that it would be an
impossibility to mistake one label for the
other. No one that could and would read
could be deceived into taking one for the
other. The Master has found from the tes-
timony that defendants label was not in
tended to deceive, and that in fact it has de-
ceived no one. The form of package is a
common one for much longer time than
any of the parties have been in business
- The general design of the grouping of
fruits in high colors, such as these labels
rather than in natural colors, the sizes and
shapes are also to our personal knowledge
common from time long before these par
ties were in business.
Yet we cannot say that taking the two
labels together the Master is wrong in find
ing that In general effect on the eye, and in
the general impression given, the labels are
so similar as to be liable to deceive the
ordinary retail purchaser of such goods
The Master finds the leading fruit of the
labels to be pear; the testimony supports
his finding. A countryman might mistake it
for a squash, at least he never saw the
original Of the pear in form and color, and
yet they are precisely the same in each
label To the casual unskilled observer
the general arrangement is the same. 1t
should not be difficult to make the necessary
changes. The exceptions to the Master
report are dismissed.
The plaintiffs have suffered no actual dam
ages; the hardship in this case is on the de-
PENDANTS. The Court would not affirm any
finding of more than nominal damages 1t
is therefore unnecessary to refer the case
Under all the facts found the defendants
should be allowed reasonable time to
change their labels. Let decree be drawn
accordingly.
"Judge White dissents and would dismiss
the bill"
Surely it might be said that such an
other "victory' would be worse than de-
feat. The Court says aside from the Masters
report it would probably have found that
the labels of defendants are not likely to
deceive the ordinary purchaser. That to
an artist the labels are so dissimilar in COL
oring, in arrangement, in names and de-
vices that he would suppose it would be an
impossibility to mistake one for the other.
Precisely SO. LUZ brOS. employed an
artist to design their label. They intended
it to be original, and it was their desire and
belief that they succeeded to the satisfac-
tion of unpreiudiced and intelligent per-
sons in avoiding similarity to labels of
other firms. They have no need to practice
such deception, as the goods they manufac-
ture find a large and ready sale on their
merits, and their name and reputation is
bringing in a daily increasing business
Lutz Bros. being second to none in this bus
mess The Court says further: 'tNo one
that could and would read could be de-
ceived into taking one for the other" TAX
ing this language of the Court it would
seem to place premium on illiteracy. The
Court says again: "The hardship in this
case is on the defendants. 1t might be
suggested that the supposed duty of a
court is to see that no hardship is to be in
fiicted. As the case stands Lutz Bros. un-
questionably sustain hardship, and, mot be-
ing willing to endure it unmerited, as it
seems to be, purpose appealing to the Su-
preme Court.