The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-06-01
LA REPUBLIQUE FRANCHISE
vs..
CARL H. SCHULTZ.

United States Circuit Court. Southern District
OF New York, for the Second Circuit.
Wallace. Circuit Judge:
Upon the proofs in this case II Is clear that
the name "Vichy is not a trademark or trade
name Of the complainants in the strict legal
sense OF the term. but is a geographical name
applied by them as well as various other own
ers OF mineral springs at or near vichy. In the
Department OF Allier France. to 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-
ton by the defendants. in applying that name
to tho artificial mineral water manufactured
and sold by them in this country. Canal Co. vs..
Clark Us Wall, 311; Columbia Mill Co. VS.. Elk
horn $50 U. s.. 40ol: The Anheuser- Busch
Brewing Association Va. Piza t23 Blatch.. 254);
Newman VS.. Alvord t51 N. Y. 1897: wother.
spoon vs. Currie IL. r. 5 H. l.. 5OS-513).
For fifty years or moro artificial mineral wa
ters approximating more or less closely in
their ingredients and properties to the natural
mineral water have been prepared and sold bv
the namo OF Vichy" by manufacturers in Eu-
rope and in this country. Natural waters
lose their original virtues moro or less
when removed from their sources, while
artificial waters manufactured under
pressure of carbOnic acid gas remain I'm.
tact In all their ingredients. Mr. Schultz
began the manufacture OF artificial water In
New York city in 1852. and from that time I'M
til the present bill was filed. q period Of thirty
years. continued to make and sell IL in large
quantities here. advertising It as "Schultz's
Nichy Water" His earliest circular to the
trade in the record contains this statement:
1.-THE mineral waters will be made with
the greatest care and according to the
best analyses known, SO that they will
not differ from tho natural springs" As
aaid ~ hin, N al
by Judge Coke tCity Of Carlsbad vs.. Schultz.
7S Fed. Reb 471). 1.-The case is devoid Of any
element OF actual fraud. and tho defend.
ant 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 to tho natural waters" It be-
came popular as beverage. being kept by
druggists generally. to be drawn from foun-
tains or syphon bottles. and sold by the glass.
The labels used by Schultz were widely dis
similar from those used with the natural
water. 1T ia apparent that he was solicitous
to have the water identified with his name as
its manufacturer; and that so far from at
tempting to palm 1t Off upon the public 40 the
natural Vichy water. he sought to commend It
as an artificial water, having substantially
the ingredients and properties OF tho nat
uEah VatCEs uub VI bTCatCT CACChCuCO anu
purity than the water made by his com.
petitOrs." II any part OF the public bought or
used his product. supposne 1t to be the natu-
raj Vchy water. they must have been very ig-
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 omplainants.
do not think 1t tended appreciably to confuse
the identity OF the two articles.
II it should be assumed. however. that
Schultz's use Of the name did tend to some OK.
tent to confuse the identity OF the two articles
the case presents the question whether. after
he had used 1t for nearly thirty years publicly
and VIGOROUSLY. without any interpostion on
| the part OF the complainants. the latter can be
| heard to assert the right to an Injunction. 1t
| Is impossible that the owners OF tho natural
waters should not have known that wherever
they were extensively sold artificial waters
were being made and sold extensively by the
| same name. II the artificial waters had been
| made and sold as purporting to be the natural
waters. there would be less equity In the de-
| fence OF laches and acauiescence: but they
| were not. They we're made ana sold to supply
| demand for artificial waters having proper
ties similar to those OF the natural water. It Ia
| very late to ask the Intervention OF equity
| to suppress course OF business which
| originated innocenty. and has been SO
generally adopted. Equity is indisposed
to assist parties who have slept upon their
rights and acquiesced In their appropria-
ton by others for a great length Of time. The
| unexampled delay and acquiescenoe In the
present case. l think. should defeat the action.
Woodmanse & Hewitt Manufacturing Company
| VS.. Williams (37 U. S. Ap. 1907; Lane d Bodily
Co. vs. Locke $50 q. s. 1881: Mclaughlin vs..
Peoples Railway Company t2l Fed. Rep. 674l.
The bill is dismissed with costs.
undorsedl.
United States Circuit Court. Southern Dis
| trict OF New York. Second Circuit.-La Repub-
| liQue Franchise Va. Carl H. STANDARDIZATION.
Wallace. 9. Limited States Circuit Court.
filed May %. 1899. John A. Shields. Clerk.
from the New Pork Lap Jou,nal) Ado.