The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1897-05-05
AN IMPORTANT DECISION
The Court Decides That Hires Rootbeer
Must Not Re Initiated


AN IMPORTANT DECISION
The Court Decides That Hires Rootbeer
Must Not Re Initiated.
1t is doubtful if any modern commodi-
". excepting money, has been counter
feited more than Hires Roo;beer, its
wide popularity and immense sale hav-
ing proved an irresistible attraction for
the unscrupulous imltator.
Justice is beginning to realize that the
public must be protected from such
practices as is evinced by the decision
just rendered by Judges Finletter and
Gordon in Philadelphia, Court OF Com
mon Pleas No. g. restraining George A.
Hires, a namesake of Mr. Charles E.
Hires. from manufacturing and selling
a prepai alton under the name of Hires
Rootbeer. In giving their decision the
Judges said:
~ neither this case be considered as
one of infringement OF a trade mark orr
s.nu.atio intended and likely 10 de-
ceive the public. the evidence is most
conclusive with the plaintiff.
ut is established that an article of
commerce known as Hires Rootbeer,' by
a long and costly method OF advertise
ment, has obtained a trade mark and
value peculiar to itself. The sales have
reached an extraordinary yearly vol
ume, and the article is known TO con-
sumers and merchants by the designa-
ton of Hires Rootbeer,' and often and
perhaps as commonly by the name Of
Hires alone. The shape and color OF
the cartoons, as well as the general typo
graphy and substance OF the printed
matter thereon. and the shape OF the bot
ties have also been peculiar TO the article
made by the plaintiff. and have served
10 give IL commercial distinction and
identity.
"The respondent Hires. a kinsman OF
the plaintiff, avaling himself OF the
sameness OF family name. is about TO
manufacture and place on the market
for sale a root beer which in all the ex-
ternals OF physical preparation and pre-
sentation is so nearly an approach to the
plaintiffs commodity that, but for the
use OF the christian or surname OF the
respondent Hires. il might be termed a
complete reproduction OF the plaintiffs
preparation and device. The cartoon. its
color, the substance OF the printed mat
ter. the bottle, the indicating designa-
ton OF title. all-while slightly varying
from the plaintiffs device-make up a
trade commodity which. except to the
or closely inquisitive,
would be taken TO be like article 10
the plaintiffs.
'T Is not necessary now 10 pass upon
the question o. now far family name
may be the subject OF trade mark so
as 10 exclude from its use others who |
lawfully bear 1t. The use OF the family |
name IN the present case only increases |
most potently increases-;he conjoined |
force and effect OF respondents other de- |
vices in working the deceptive simua-
ten.
"All cases Of this character must de- |
pend upon their own facts and clrcum- |
stances.
Actual fraudulent intent can never be
inferred from anything outside o. the
case Itself.
The testimony in The case now before
US. We think. makes il indub!iaoly clear
that the respondents purpose-their sole
and only purpose-xas 10 fabricate an
article OF trade which IN shape. color.
OF name and general appear
snce ressmblei the plaintiffs article.
and thereby deceive and mislead the
public and purchasers generally.
1T is impossible to come 70 any other
conclusion bu; that this was the main
inter-: ot ne respondents
"Bu; for the fortuitous identity Of fam
~ name. i: il clear that the respondent
would never have embarked II this pro
POSED commercial venture. and the eys-
iencs shows that their studied purpose
vas % copy as close 20 the sppearancs
Ind name OF plaintiffs article as posi-
DE, and preserve similarity while yai
presenting minor differences.
Eve find. therefore. upon ire evidence
lox presented. IA; The allegations O:
he plaintiffs bill ara established and
ha; me temporary injunction p-ayss
or should b awarded
Therefore. let preliminary injunction
y continued eSaszst George A Hires.
nd issue against joseph II. InzersoI
nd Robert c. InEs-sou. s5d aEaias,
hem and any % them trading as George
l. Hires and Company
We hare never 81 seen nan too poo;
0 o~n gzn and dog
Great Scott, Ephl what's the nzrabsr q
our boots. Two. sab; one for escs !
80 sah.'
Ostsa when people tel yo1 hOw thsy
I'D somebody cl-e shat theT fbosgrt % !
5en {. - : ise.-N zsai.xton D<EaocTSt-
Mrs Crirnsarbezk lzs hSr bcshzrd cnr,cx
2 ate AZ night What Dor the esor- a.. !
ohm" Mr.. Crlrz-@oubezk with dff5critTi . =
-.-So.As-x, madam. nothing If's 81 Es.sse
1pGgh 10 say nothing -SoaSs-s States
lam.
CASz-S1LA
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