The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-05-14
AN IMPORTANT DECISION.
The Court Decides That Hires Root
Beer Must Not be Initiated

1t is doubtful if any modern COM
modify, excepting money, has been
counterfeited more than Hires Root
beer, its wide popularity and immense
sale having proved an irresistible at
traction for the INSCRIPTIONS imitator.
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. 3, restraining George
y. Hires, a nameSake of Mr.. Charles
z. Hires, from manufacturing and sell
ing a preparation under the name of
Hires Rootbeer. In giving their de-
cision the judges said:
Whether the case be considered as
one of infringement of a trade mark
or as g stimulation intended and like
ly to deceive the public, the evidence
is most conclusively with the plaintiff.
1T is established that an article of
commerce known as Hires Rootbeer,'
by a long and costly method of adver-
tisement, has attained a trade mark
and value peculiar to itself. The sales
have reached an extraordinary yearly
volume, and the article is known to
consumers and merchants by the desig-
nation of Hires Rootbeer, and often
and perhaps as commonly by the name
of Hires alone. The shape and color
of the cartons, as we'll as the general
topography and substance of the
printed matter thereon, and the shape
of the bottles. have also been peculiar
to the article made by the plaintiff,
and have served to give it a CONNER
cial distinction and identity.
The respondent Hires, a kinsman Of
the plaintiff, availing himself of the
sameness of the family name is about
to manufacture and place on the mar
rot for. c-nIo -.
the eXternalS of physical preparation
and presentation is so nearly an ap-
proach to the plaintiffs commodity
that, but for the use of the Christian
or surname of the respondent Hires
1T might be termed a complete repro
duction of the plaintiffs preparation
and device. The carton, its color, the
substance of the printed matter, the
bottle, the indicating designation of
title, all-while slightly varying from
the plaintiffs device-make up a trade
commodity which, except to the I'M
sophisticated, would be taken to be a
like article of the PLAINTIFF
TT is not necessary now to pass
upon the question of how far a family
name may be the subject of a trade
mark so as tos exclude from its use
others who lawfully bear it. The use
of the family name in the present case
only increaSeS-moSt potently in
creases-the conjoined force and effect
of respondents other devices in work.
ing the deceptive stimulation.
"All cases of this character must de-
pend upon their own facts and circum-
stances.
Actual fraudulent intent can never
be inferred from anything outside of
the case itself.
The testimony in the case now be
fore US, we think, makes it indubit-
ably clear that the respondents pur-
pose-their sole and only purpose-was
to fabricate an article of trade which |
in shape. color. designation of name |
and general appearance reSembled the |
plaintiffs article, and thereby deceive |
and mislead the public and purchasers
generally.
1T is impossible to come to any
other conclusion but that this was the |
main intent Of the respondents
But for the fortutouS identity of |
family name it is clear that the re-
spondent would never have embarked |
in this proposed commercial venture. |
and the evidence shows that their |
studied purpose was to copy as close |
to the appearance and name of plain
tiff's article as possible, and preserve
while yet presenting minor
I'VE find, therefore, upon the evil
dence now presented. that the allega-
tons of the plaintiffs bill are estab-
lished and that the temporary irjunc-
ton prayed for should be awarded.
Therefore, let preliminary inju 1c-
ton be continued against George A.
Hires, and issue against Joseph II.
lngersoll and Robert c. Ingersoll, and
against them and any of them trading
as George A. Hires and Company"