The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-11-16

lies.
Intentional abandonment Of the use Of a
trademark IL intention Of the abandon
ment OF the right 70 the trademark.
OPINION OF THE COURT BY JUDD, c. ].
Az. Gear was the proprietor of a
newspaper called the "Ind-pendent."
r. l.. Finney was the proprietor of a
NEWSPAPER called the Evening Bull
Ietin.U On the 18th June last these
two persons formed a partnership,
merged the two papers into one and
the partnership published a news
paper under the title Evening Bull
ietin with which il incorporated the
Independent." The defendants there
after published newspaper under the
title "The Independent"
The PLAINTIFF bill against defend
ants alleges inter alta that the plain
tiff Gear secured a "cOpyrighp' for
the title Of the newspaper the "EveD-
ing Bulletin with which Is incorpo-
rated the Independent" and applied
for but failed to secure copyright for
the title "The independent; that
Gear is the original author of the title
the Evening Bulletin with which Is
INCORPORATED the Independent" that
on the oath June last the defendants
Independent,D though notified by
plaintiffs that they would consider 1t
an infringement of their copyright,
and that they had never abandoned
the title t'The Independent" but in
tended To preserve the same for them
selves in their newspaper business,
and plaintiffs pray that the defend
ants may be eujoIned from publishing
any newspaper under the title "Ihe
Independent"
The defendants demurred and the
demurrer was sustained by Circuit
Judge Cooper on the points that the
bill shows no infringement aud shows
an abandonment OF the title The
independent" The case comes to US
on these points alone, the plaintiffs
waving other points which were
ruled in their favor.
A few principles of law may here be
stated The right to a trade mark Is
founded upon possession and posses
sion rests upon the mere act OF adop-
ton and use. Browne on the law of
trade marks, Sec. As, and cases cited.
Registration of a trademark Is not
essential to its ownership nor TO the
right to sue for an infringement,
one object of the statute of regis
tration being to afford conven-
lent method of proving an adop-
ton of the trade mark; that Is, 1t
affords prima facie evidence CT owner
ship A newspaper title merely does
not seem to- be an appropriate subject
of copyright and therefore the copy
righting by the plaintiffs of the title
to their newspaper cuts no figure In
this case Each publication itself
NAV be the subject of copyright, but
not the title distinct from the subject
matter of publication. The title OF
newspaper may possess all the charac-
terf-tics of a trade mark when the
same is a newly coined term or an ar
bitTary symbol; but that Is generally
not So" Browne, Sec. 547.
There are numerous cases in which
courts of equity have enJoined the use
of a title of a newspaper which bears
such a similarity to the title of another
paper which has the right to 1T as a
trademark that the casual reader,
not the close observer, would not
readily distinguish between the two
and would be likely to be deceived OIL
misled into purchasing the one for the
other. To show infringement identity
Is not essential; similarity Is suffl-
eiept. 80 Fed. r. 81. 4 few OF the
cases we now cite.
The "Evening POST was not a suffi
eient infringement on the Morning
Post' TO entitle plaintiffs to an lnJunc
ton. Borthwick V. Evening Post, 81
On. Div. 449.
Chatter Book" was an limitation
and an infringement of "Chattel
Box both books gotten up in the
same style and both Juvenile pu6lica
tions. Estes V. Leslie. % Fed. K. 81
1.-THE Northwest News" held nc
piracy of 1.-The New Northwest" J.
Oregon, 322 ga
"EI Cronista" held no infringement
of .siEI Cronica" Cited in 26 Eng
and Amer. Encyc. of Law, p: 271.
''The New Era" is no infringement
of 1.-The Democratic Republican New
Era" Bell V Locke, Paige, 20
We are not favored upon any allie
CATION in the bill with a view OF the
two papers so as to ascertain 10y In
spection whether they are so similar
10 title, size, paper, type, method o
folding, etc, as to mislead the casua
observer. We have to pass upon the
naked allegations in the bill SETTING
out the spective titles. We nn'
that thew are certainly not iden
sOnnns, Nor would one desiring I,
buy the Evening Bulletin, Will
which is incorporated the Indepen
dent.'' be likely to be deceived Int
buying ''The Independent instead o
the former.
Upon the face of the bill we fail t
find an infringement of the title OF IN
plaintiffs present newspaper. Bu
the plaintiffs claim in argument tina
they still own the title, as trade
mark, OF their former paper, "Ihe lnde
pendent" and they have never aoan
doned it. There is no exact avermen
in the bill that they own this tltie
but it may be inferred from other ale
CATIONS. II the plaintiffs still own tn
trade mark, ''The Independent" the
the publication of the defendants ps
per is an infringement, for the title
are identical. The question remains
therefore, do the plaintiffs still oW
this trademark or have they lost