The Portland daily press., 1895-04-25

Portland by parties previous to 1885.
His firm had purchased the business OF
Isaac Emery and came into possession
of the stencils and trade marks. Among
them was one with the words bois
DUR upon it. They had no occasion to
use it until recently. But last year they
did ship a cargo of shook with that
mark upon it having used it simply III
giving information and as an advertise
ment of their business.
Stephen VICAR made aft devit that in
1889 he was shipping clerk for Isaac
Emery and had charge of his stencils,
and that among them was the stencil re-
ferred to by MIR. Allen.
AT this point the three stencils were
produced and an impression made from
each upon brown paper so that the judge
could see that they were just the same,
with the only difference of name and
in the case of that of j. H. Hamlen &,
Son, the addition of the words inside
the eclipse. in small type, "Trade mark
Registered"
HON. BYRON D. VERRILL'S PLEA.
Hon. Byron D.Verrill closed..for the de-
PENDANTS and stated that the allegations
of the complaints were based upon the
facts that weresnot yet established. He
claimed that it had been shown thar
the respondents had not themselves
shipped any shook..to the Windward L.
lands, but thai they had sold to New
York parties.
"hey claim that the French words are
merely descriptive and words whichsany
party would have right to use. They
claim that the trade mark is not I'M
usual is form and style and that there is
nothing in it seeking to take the name
or the mark of the other firm. There is
nothing in the use Of this mark intended
or likely to mislead any body as to whose
goods they are or as to whether it in
dicates any particular quality.
Here is a cargo of goods sold without
reference to any kind of trade mark. He
was authorized by his clients to say
that had they been informed by Mr..
Hamlen in season that he preferred that
| they should not use that mark, they
would not have done So. But instead
of such request and without know
ledge and intent of infringement of Mr..
Hamlen's trade mark, they get the YES
sci half loaded and this complaint is
made and an injunction placed upon the
vessel.
| All they asked was that they have fair
/ treatment in regardl to this particular
cargo. They were perfectly willing to
submit to an injunctin as to future
cargoes, until the case is settled upon
| it's merits.
JUDGE SYMoNDS' STATEMENT.
Judge Symonds made the closing ar
gument for the plaintiff. He said: My
brother says that there is no valid trade
mark. That matter has been thorough
ly investigated by the patent office at
Washington, and the fact has been es-
| tablished that this is trade mark.
| There has been nothing presented to dis.
pose of that fact. The matter of words,
characterization, etc., is entirely outside
of the controversy. The patent Office
determines the validity of the trade
mark.
Those words "bois dur" haven't been
put on these goods for 90 years just to
tell the French people that these good s
are made..of hard wood. They are a
| brief certificate that our manufacture
| of shocks conforms with the French
custom regulations and that these are
| bor CHI he mi +ha nsy
of the French law. They also assure
their customers of the same thing.
4 In regard to the stencil of Isaac Emery,
the facts presented show that it was
never used. Here is an old established
business, to which rs years of Mr.. Ham
dulously devoted. For the last % years
without break, he has spent from two
to four months every year in those is
! lands. He has kept in touch with the
different demands of the sugar planters
+, as.to quality. Also French regulations
He has not been able to make contracts
for over years time. This business is
full Of dangers. The respondents admit
that 1. cargo of these goods went there
last year under this mark and now they
say that--the sending of this cargo there,
| thus marked, will not cause irrepara BILE
loss, and desire to send it for. the sake
of saving $500. 80
| 1t is not a question of quality of goods.
1t is a question of putting these disguised
goods, similar TO ours inro the hands of
men hostile to us, to send them out to
break down this business that is the re-
suit OF rs years ofsconstant labor.
My friends ON the other side of the
case smile at the statement that there
has beensan attempt to palm off their
goods as the same as ours, but this is
the situation and this is how we stand.
Here is the fact that one of the firm
went to those islands last year and made
offers to sell shook at lower rate, and
then we find this large vessel being load
ed with shook for Martinique and upon
them a mark so similar to ours that
we feel that it is an infringement OF
our patent.