The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1894-12-25
corroLRNE AS A TRADEMARK

oeurts for some time, has recently
reached a decision in the United States
| Circuit Court for the Southern District
of New York, Judge Townsend presid
ing, As the decision has q wide appli-
cation, and contains numerous interest
ing references, with a full presentation
of the law as applied to trademarks,
we give the decision in full, believing
it will prove of interest to our read
ers:
This is a bill in equity for an injunc-
ton against the infringement of com
plainant's trademark "Cottolene" by
the use of the work "Oottoleo."
The complainant began the manu-
facture of the article and devised and
registered the work "Cottolene" as a
trade mark, in 1887. It obtained a
large and increasing business. In May,
1892, it's sales amounted to a million
pounds a month.
"Cottolene' is a substitute for lard.
It is composed of cotton seed oil and
the product of beef fat. Beef fat or
suet, under heat and pressure, yields
two products, cleo stearine and cleo
margarine. The former is a solid, and
is used in making a substitute for lard.
The latter is more nearly a liquid, and
is used in making q substitute for but
ter.
The word "oleo' is used collCquially
among merchants to indicate either
oleo margarine or cleo stearine.
At the time when defendant in 1892,
commenced the manufacture of Got
toleo," which is identical in compost
ton, character and appearance with
"Cottolene," other articles made of the
same Ingredients were on sale in the
market under the various names other
than "Cottolene," such as "Lardine, "
Cotton Oil Lard" "Panteleia," "Gol
lden Beet Drippings, Beef Frying
Fat" etc.
These facts were known to the de
PENDANT.
The compound in question was we'll
known, and defendant had a right to
manufacture and sell it.
Defendant sold under its own trade
name, and except in the use of the
word ''Cottoleo" stencilled on tierces
and tubs, did not simulate the labels or
packages used by complainant.
This article, however, is frequently
sold in tierces~to bakers, and in tubs
to grocers who sold it to customers
from such tubs by the pound, so that
the customer does not necessarily see
the package at all.
III seems clear that ''Cottolene" is a
proper end valid trademark. Although
it may suggest cotton oil, it is not sufi
GENTLY descriptive to render it valid as
a trade mark under the recent decis-
ion.
The rule that names suggestive of
the nature or composition of articles
may be valid trade marks if not too
accurately descriptive of their charac-
ter or quality has been applied to Bur
nett Us. Phalon, 9 Bos., 1872, to the use
of the word "Cocoaine"; in Glen Cove
Mfg. Co., % F. R. 1923, to "Valvoline";
in Battle & Co. as Finlay, As F. R,
766, to "Bromidia."
A mora recent case is Keasbey Us.
Brooklyn Chemical Works, decided by
the Court of Appeals in New York
since the argument Of this case. The
trademark in question in that case is
Bono Coffeine.
This was held to be a valid trade,
mark in the Supreme Court, which
decision was over. ruled by the General
Term and cited by the defendant in
support of its contention that "Cotto-
leo'' was a descriptive word.
This article called Bromo Coffeine,
made by the plaintiff in that Gaze, was
found to contain caffeine, bromide of
potassium and other substances.
The opinion in the Appellate Court
says that bromide Might refer to bro
ide of potassium or bromide of sodium,
''or to any other bromide, or to bro
mine" and thus stated it's conclusion:
I'VE think this case comes within the
doctrine of those causes which have
protected the words of the trade mark,
although they suggested more or less
the composition, quality or character
istics of the article.
It also seemed clear that the word
'Cottoleo" is sufficiently similar to
''Cottolene" to infringe it. When the
printed form as well as the sound is
considered, the resemblance is as great
as thai of Cellonite to Celluloid, Gel,