New-York tribune., 1899-06-01
La Repub|ique Francaise
VS..
Carl X. Schultz.

United States Circuit Court, Southern District
OF New-York. for the Second Circuit.
Wallace Circuit Judge:
Upon the proofs in this case it is clear that the
name "Vchy" is not a trademark or trade
name OF the compla nants in the strict legal
sense OF the term. bu is a geographical name
applied by them as well various other owners
OF mineral springs at or near Vichy. In the De-
partment Of Allier France. 20 designate the
locality Of origin and indicate the general char
acteristics of the waters. The bill can only be
maintained upon the theory Of unfair competi-
tion by the defendants I'm applying that name 10
the artificial mineral water manufactured and
sold by them in this country. Canal Co. vs..
Clark d3 Wall. BID Columbia Mil Co. Elk
horn QJO L. s.. 460): The Anheuser- Busch Brew
ing Association VS.. Piza (23 Blatch 25D New
man VS.. Alvord C5l n. Y. 1s0; wotherspoon
vs.. Currie a. r. , II. L., J0S-5l0.
For fifty years or more artificial mineral
waters approximating more or less closely In
their ingredients and properties TO the natural
mineral water have been prepared and sold by
the name OF "Vchy' by manufacturers In Eu-
rope and in this country. Natural waters lose
their original virtues more or less when
removed from their sources, while artfd-
cial waters manufactured under pressure
of carbonic acid gas remain intact In all
their ingredients. Mr.. Schultz began the
manufacture OF artificial water in NewYork
City in 1852 and from that time until the
present bill filed, a period OF thirty years.
continued to make and sell II in large quantities
here advertising it as 'Schultz's Vichy Water"
His earliest circular TO the trade in the record
contains this statement, 'The mineral waters
will be made with the greatest care and
that they will not differ from the natural
springs" AS was said OF him In quite SINH
lar case by Judge Coke City OF Carlsbad VS.
Schultz, IS Fed. Rep. AID. "the case is devoid
Of any element OF actual fraud, and the de-
fendant has acted in good faith throughout.
His product acquired a high reputation for
its purity, was prescribed extensively by
physicians, and was considered by many TO
be preferable for therapeutical purposes 20
the natural waters" 1t became popular as q
beverage, being kept by druggists generally, to
be drawn from fountains syphon bottles and
sold by the glass The labels used by Schultz
were widely dissimilar from those used with tho
natural water 1T is apparent that he was
solicitous to have the water Identified with his
name as Its manufacturer: and that so far from
attempting to palm it off upon the public as the
1
as an artificial water, having substantially
the ingredients and properties Of the natu-
raj water, but Of greater excellence and
| purity than the water made by his COM
| petitors." II any part of the public bought
or used his product, supposing it to be the natu-
| raj Vichy water, they must have been very is-
norant or very careless persons.
Assuming that the use OF the name "Vichy"
| in connection with the artificial water made by
! Schultz may have tended to divert to some ex-
| tent sales OF the water OF the complainants I
| do not think II tended appreciably to confuse
| the identity OF the two articles.
| II II should be assumed however. that
| Schutz's use OF the name did tend 10 some ex-
tent TO confuse the identity OF the two articles
| the case presents the question whether. after ne
| had used It for nearly thirty years publicly and
| notoriously without any interposition on the
part of the complainants, the latter can be hearo
| TO assert the right to an injunction. IL Is I'M
| possible that the sowners Of the naturai waters
| should not have known that wherever they
were extensively sold, artificial waters We're oe-
| ing made and sold extensively by the same
!. name II the artificial waters had been MACS
| and sold as purporting TO be the natural waters
there would be ess equity In the detence Oh
laches and acquiescence; but they were not
They were made and sold to supply demand
for artificial waters having properties similar
! 70 those of the natural water. IL Is very iate
90 och the intervention OF equity to suppress q
| course NJ business which originated innocentiy
snd has been so generally adopted Equity IL
indisposed TO assist parties who have sep'
! unon their rights and acquiesced in their appro-
priation by others for a great length OF ume
The unexampled delay and acquiescence III '"s
nresent case, 1 think should defeat the action
woodmanse & Hewitt Manufacturing Company
vs. Williams (31 U. S. Ap.. 1O9: Lane q boo'S
Co VS.. Locke $50 U. s.. 1885, Mclaughlin Va
Peoples Railway Company C2l Fed. Rep o'p'
The bill is dismissed with costs
Endorsed
United States Circuit Court Southern Distnc'
! -. Nau,-york Second Circuit-La Repuohque
Erancaise and Others vs.. Carl II Schultz. opin'
ion. wallace. c. limited States Circuit COURT
e,sd NAV 23 1899 John A. Shields. Clerk
From the N. Y Laqv Joaraai.)