Daily Kennebec journal., 1894-12-20
Cottolene as a Trade. Mark.

| From the Oil, Paint and Drug Reporter.
| An important and interesting trade
mark suit, which has been before the
| courts for some time, has recently reached
| decision in the United States circuit
court for the southern district OF New
| York, Judge Townsend presiding. AS
| the decision has wide application, and
contains numerous interesting references,
with full presentation of the law as ap-
piled to trade marks, we give the decision
| in full, believing it will prove OF interest
to our readers.
This is bill in equity for an injunction
against the infringement of complainants
trademark Cottolene" by the use of
the word "Cottoleo
| The complainant began the manufac-
ture of the article and devised and regis
tered the word "Cottolene'' as trade
mark, in 1887 1t obtained large increas-
ing business. In May 1892, its sales
amounted to million pounds month.
| "Cottolene' is a substitute for lard. 1t
is composed of cotton-seed oil and the
product of beef fat. Beef fat or suet, under
heat and pressure, yields two products,
oleo stearine and oleo-margarine. The
former is a solid, and is used in making
substitute for lard The latter is more
nearly liquid, and is used in making
substitute for butter.
The word "oleo' is used colloquially
among merchants to indicate either oleo7
margarine or oleo-stearine.
AT the time when defendant in 1892,
commenced the manufacture of Got
toleo," which is identical in composition,
character and appearance with Cottolene,
other articles made of the same ingredi-
ents were on sale in the market under the
various names other than "Cottolene,"
such as "Lardine,'' "Cotton Oil Lard,
"Panteleia, "Golden Beef Drippings,p =
''Beef Frying Fat" etc.
These facts We're known to the defen-
dant.
The compound in question was well
known, and defendant had right to
manufacture and sell it.
Defendant sold under it's own trade
name and except in the use of the word
stCottoleo' 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.
1t seems clear that "Cottolene" is a
proper and valid trade mark. Although
it may suggest cotton oil, it is not sutfic-
iently descriptive to render it invalid as a
trade mark under the recent decisions.
The rule that names suggestive of the
nature or composition of articles may be
valid trademarks if not too accurately
descriptive of their character or quality
has been applied to Burnett VS.. Phalon,
8 Bos, 1872, to the use of the word Go
coaine;" in Glen Cove Mfg. Co., 20 F.
r. S23 to Maizena," in Leonard VS..
White, 3S F. R., 922, to "Valvoline;"
in Battle & Co. VS.. Finaly, 45 F. r., 796,
to "Bromidia.
A more recent case is keasbey VS..
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 BromO Caffeine
This was held to valid trademark in
the supreme court, which decision was
over-ruled by the general term and cited
by the defendant in support of its con-
tention that "Cottoleo" was a descriptive
word.
This article called Bromo Caffeine,
made by the plaintiff in that case, was
|
tassium and other substances
| The opini on in the appellate court says
that bromide "Might refer to bromide of
potassium or bromide of sodium, or to
any other bromide, or to bromine," and
| thus stated it's conclusion :" We think this
case comes within the doctrine of those
cases which have protected the words of
the trademark, although they suggested
more or less the composition, quality or
characteristics of the article.
| 1t also seems clear that the word "Cot-
toleo''is sufficiently similar to Cottolene"
to infringe it. When the printed form
as we'll as the sound is considered, the
resemblance is as great as that of Cellonite
to Celluloid, Celluloid Mfg. Co VS.. Gel
lonite Mfg Co., 80 f. r. "a; Wamyesta to
Wamsutta Wamsutta Mills VS.. Allen
Cox's Manual, $780, Maizharina to Maiz-
ena, Glen Cove Mfg Co. vs. Ludeling. %
F. r., 1923; Saponiti to Sapolio, Enoch
Morgan Sons Co. VS.. Elder, Cox's Man
ual 713 See also Estes VS.. Leslie, 80 +.
r., 81, in which fChatterbook' was held
to infringe "Chatterbox.
Defendants counsel does not seem to
seriously controvert these propositions.
His defense is novel and ingenious. He
| says tndt Cdu DuNc III pCooCi
case there than he would have if his
trade mark had been "Cottoleo' and the
defendant had used the same word, and
he maintains that "Cottoleo' is so far a
descriptive word that it cannot be used
as a trademark.
He says "If such an alleged trade
mark would not have prevented the de-
fendant from using the same word, GER
tainly a trademark claimed in any other
word cannot prevent the defendant from
using it.
| He says that, as this was a new COM
pound when complainants began to manu-
facture it, they could not, by their choice
of name adopted as trademark restrict
| any parties thereafter manufacturing in
their choice of descriptive words
He says that defendant was justified
'in using word which was euphonious,
and which indicated the ingredients of
which the product was composed, and
that no trademark claimed or owned by
the complainant can abridge that right. -
The questions as stated by defendant
then are: First, is "Cottoleo" so far a
descriptive word that it could not be used
as trademark?