The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-19

The title to a newspaper, the Evening
/ Bulletin, with which is incorporated the
Independent" is not infr:nged upon by
, the publication of newspaper entitled
The Independent
Property in a trademark cannot be &C.
quired or retained Independently of the
article which the trademark symbol
ICES.
Intentional abandonment of the use of a
trademark is intention of the abandon
ment of the right to the trademark.
OPINION OF THE COURT BY JUDD, c. j.
A. V. Gear was the proprietor of a
newspaper called the "Ind- pendent"
B. l.. Finney was the proprietor of a
newspaper called the "EveniDg Bull
letin." 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
letin with which il incorporated the
Independent" The defendants there
after published a newspape under the
title 1.-THE Independent"
The plaintiff bill against defend
AUS flltgts tHttT utfu tJdI TIE Dldlu-
tiff Gear secured a copyright" 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 1.-THE independent; that
Gear is the original author of the title
the Evening Bulletin with which is
incorporated tue Independent; that
on the oath June last the defendants
published a newspaper called 1.-THE
Independent" though notified by
plaintiffs that they would consider It
an infringement of their copyright,
and hat they had never abandoned
the title "The Independent" but in
tended to preserve the same for them
selves in their newspaper business,
aud plaintiffs pray that the defend
ants may be enjoIned from publishing
any newspaper under the title "The
Independent"
The defendants demurred and the
demurrer was sustained by Circuit
Judge Cooper on the points that the
bill shows no Infringement and shows
an abandonment of the title 1.-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 a conven-
lent method of proving an adop
ton of the trade mark; that is, it
affords prima facie evidence of owner
ship A newspaper title merely does
lot seem to he an appropriate subject
of copyright aud therefore the copy
trightiDg by the plaintiffs of the title
to their newspaper cuts DO figure in
this case Each publication itself
may be the subject of copyright, but
not the title distinct from the subject
matter of publication. "Tbe title of a
newspaper may possess all the charac.
teristics of a trade mark when the
same is a newly coined term or an ar
bitrary symbol; but that is generally
not so" Browne, Sec. 547.
There are numerous cases in which
courts OF equity have eDjoined the use
of a title OF newspaper which bears
such similarity to the title of another
paper which has the right to it as a
trade mark that the casual reader,
not the close observer, would not
readily distinguish between the two
aud would be likely to be deceived or
misled into purchasing the one for the |
other. To show infringement identity
il not essential; similarity is suffi- /
cient. 80 Fed. r. 81 A few of the |
cases We now cite.
The "Evening Postr was not a suffi- |.
Gent infringement on the "MOrning
POst' IN entitle plaintiffs to an iujunc- |
ton. Borthwick " Evening Post, 81 |.
Gu. Div. 449
Chatter Book" was an imitation |
and an infringement of "Chatter /
Box" both books gotten up in the |
same style and both juvenile publica-
tons. Estes v Leslie. 20 Fed. R. 81. |
"The Northwest News held no
piracy of "rhe New Northwest" IL |
Oregon. 322
"EI Cronista" held no infringement
of "El Cronica" Cited in 26 Eng.
and Amer. Encyc. of Law, D. 271.
1.-The New Era" is 10 infringement !
of "The Democratic Republican New
Era " Bell Locke, Paige, 10
We are not favored upon any allie
cation in the bill with a view of the
two papers so a. to ascertain by in
spection whether they are so similar
in. title, size, paper, type, method of
folding, etc, as to mislead the casual
observer. We have to pass upon the
naked allegations in the bill setting
out the spective titles. We find
that they are certainly not idem
sondns Nor would one desiring to
buy the Evening Bulletin, with
which is incorporated the Indepen-
dent" he likely to be deceived into
buying "The Independenp instead of
the former.
Upon the face of the bill we fail to
Fl Il an infringement of the title of the
plaintiffs present newspaper. But
the plaintiffs claim in argument that
they still own the title, as trade
mark, of their former paper, "The indie
pendent" aud they have never aban
doued it. There is no exact averment
in the bill that they own this title,
but il may be inferred from other allie
cations. II the plaintiffs still own the
froda mo RI sgTha Tpdapapdant than