The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-05-05
AN IMPORTANT DECISION.
The Court Decides Thut Hires Root
herr Muht Not Nc Initiated.

1t Is doubtful If any modern commod
lily, excepting money, has been counter
feited more than Hires Rootbeer. it's Wild,
popularity and immense sale having
proved an Irresistible attraction for the
INSCRIPTIONS imltator.
Justice IL beginning TO realize that tho
public must be protected from such prac-
| tees as is evinccd by the decision Just
| rendered by Judges Finletter and Gordon
! in Philadelphia. court of common pleas
| No. g. restraining George A. Hires, 4
| namesako of MIR. Charles II. Hires. from
manufacturing and selling preparation
under the name of Hires Rootbecr In CIV
| ing their decision the judges said;
| Whether this case be considered az one
| of infringement of a trade mark or as n
stimulation intended and likely 10 deceive
| the public. tho evidence Is most conciu-
sivoly with the plaintiff.
II is established that an article OF COM
merCa known as Hires Rootbcer, by IA
| long and costly method of advertisement,
has attained IA trade mark and value pc
| culiar to itself. Tho sales have reached
an extraordinary yearly volume, aud the
article is known 10 consumers and mer-
chants by the designation of Hires Root
beer" and often and perhaps MS com
monty by tho name of 'liireH alone. Ihe
shape and color OF the carton, as wen
as the general Typography and substance
of the printed matter thereon. and the
culiar 10 the article made by the plainlih,
and have served to give II commercial dis
tlnction and Identity.
The respondent Hires. kipsman of tho
plaintiff, ayailng himself OF the samoness
OF family name lis about TO manufacture
and place on the market for saio Il root
beer which in all the cxtcrnals OF physical
preparation and presentation is 80 nearly
an approach to the plalntin's commodity
that. but for the use ~ the Christian or
surname Of the respondent Hires, II might
be termed a complete reproduction of the
plaintiffs preparation and device The
carton. it's color, tho substance OF the
printed matter, the bottle, tho indicating
designation OF tile. all--while slightly
varying from the plaintiffs deyice-mskc
up trade commodity which, except to the
sophisticated or closely inquisitiye, would
be taken to be a like article to the plant
IFS.
1t Is not necessary now To pass upon
the question OF how far family name may
be the subject OF Il trade mark 30 aB TO
exclude from its use others who lawfully
bear II. The uso OF the family name In the
present case only incrcases--moat potently
increases coniolned force and effect
OF respondents other devices In working
the deceptive stimulation.
All cases OF this character must depend |
upon their own facts and circumstances.
Actual fraudulent intent can never be |
lhitIItl IlO!H uHstuihb outeiuo " eho ehso |
itself.
The testimony IN the case now before
US. we think. makes It indubitably clear
that the respondents purpose their sole
and only purpose--waS to fabrlcate an ar
tlcle Of trade which In shape. color. deslg-
nation OF name and general appearance re-
sembled the plaintiffs article. and thereby
deceive and misiead the public and pur-
chasers generally
II Is impossible to come TO any other
conclusion but that this was the main In
.ent OF the RESPONDENTS.
But for the fortuitous identity OF family
iaine. II Is clear that the RESPONDENT would
never havo embarked in this proposed COM
nercial venture. and the evidence shows
hat their studied purpose was TO copy as
lose 10 the appearance and name OF
article as possible and preserve
while yet presenting minor dif-
erences.
We find, therefore. upon tho evidence
low presented. that the allegations OF the
,laintlff's bill arc established and that tho
temporary Injunction prayed for should
10 awarded.
Therefore let preliminary injunction be
ontinued against George A. Hires. and is
ue against Joseph II. Ingersoll and Rob-
ut G. Ingersoli. and against them and any
Z them trading ~ George A. Hires = co,