{ "id": 2590380, "name": "Hopkins Amusement Company v. Charles Frohman", "name_abbreviation": "Hopkins Amusement Co. v. Frohman", "decision_date": "1902-10-24", "docket_number": "", "first_page": "613", "last_page": "617", "citations": [ { "type": "official", "cite": "103 Ill. App. 613" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "80 Ill. 54", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2681565 ], "opinion_index": 0, "case_paths": [ "/ill/80/0054-01" ] }, { "cite": "69 N. Y. 271", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 530723 ], "opinion_index": 0, "case_paths": [ "/ny/69/0271-01" ] }, { "cite": "96 U. S. 245", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3382050 ], "opinion_index": 0, "case_paths": [ "/us/96/0245-01" ] }, { "cite": "50 Md. 591", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1824574 ], "opinion_index": 0, "case_paths": [ "/md/50/0591-01" ] } ], "analysis": { "cardinality": 456, "char_count": 9177, "ocr_confidence": 0.541, "pagerank": { "raw": 1.2696759177207768e-07, "percentile": 0.6143875569579539 }, "sha256": "6a4fe128d094d5e192033f147308e76bd3a7067ec106946879211625a84e70e1", "simhash": "1:c3e5a67511ab0fd9", "word_count": 1545 }, "last_updated": "2023-07-14T16:00:05.984899+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Hopkins Amusement Company v. Charles Frohman." ], "opinions": [ { "text": "Mr. Presiding Justice Freeman\ndelivered the opinion of the court.\nAppellant\u2019s principal contention is that \u201cthe bill of complaint does not set up a case recognizable by any court, where, as here, it is sought to maintain an alleged trademark right, based on common law rights, for a literary production, wholly unconnected and disassociated from merchandise or mercantile business.\u201d It seems to be assumed that a trade-mark right can not be maintained except where the trade-mark is applied to articles of merchandise to indicate \u201c ownership and origin, and carry with it a guaranty of character and quality.\u201d The right to protection is not thus limited. The names of publications, arbitrarily selected, may be and frequently have been protected as trade-marks. In Robertson v. Berry, 50 Md. 591-596, it is said : \u201c A publisher or author has, either in the title of his work or in the application of his name to the work, or in the particular marks which designate it, a species of property similar to that which a trader has in his trademark, and may, like a trader, claim the protection of a court of equity against such a use or imitation of the name, marks or designation as is likely in the opinion of the court to be a cause of damages to him in respect of that property.\u201d In the case at bar the drama entitled \u201c Sherlock Holmes \u201d has not'been copy-righted. Its authors, and appellee as their grantee, are nevertheless entitled to protection against unlawful invasion of their rights. It is said by Justice Clifford in McLean v. Fleming, 96 U. S. 245-252, \u201c the court proceeds on the grounds that the complainant has a valuable interest in the good will of his trade or business, and having adopted a particular label, sign or trade-mark indicating to his customers that the article bearing it is made or sold by him or by his authority, or that he carries on business at a particular place, he is entitled to protection against one who attempts to deprive him of his trade or customers by using such labels, signs or trade-mark without his knowledge or consent.\u201d\nIn the case before us it appears that appellee is the owner, by contract with the authors, of the exclusive right to produce the play based upon a character created in a book by A. Conan Doyle, the play having been prepared by said Doyle in connection with one Gillette, a dramatist and actor, and that they adopted the name \u201cSherlock Holmes\u201d for said drama as their trade-mark to distinguish it from all other productions, plays or dramas. This play has been performed in many places and the receipts from its performance have been large. The bill asserts and the demurrer admits, the adoption of the name \u201c Sherlock Holmes, Detective,\u201d is an effort on the part of appellant to obtain some advantage from the advertising done by appellee and the reputation acquired for the original play by its successful production. One seeing appellant\u2019s advertisement of a play entitled \u201c Sherlock Holmes, Detective,\u201d would naturally suppose, unless particularly advised to the contrary, that it is the same play containing the same character described in Doyle\u2019s book and in the dramatization advertised and produced by appellee. If, as the bill asserts, the play advertised by appellant under the name \u201c Sherlock Holmes, Detective,\u201d is inferior to the original, it is apparent that the latter may suffer in reputation by the production of an inferior play under a name so closely identified with that produced by appellee.\nIt is alleged in the bill that appellant is attempting to deceive the public by the production of its play under the name of the original character. As said in Hatsell v. Flannagan, 2 Abb. FT. S. 459, \u201c the enforcement of the doctrine that trade-marks shall not be simulated does not depend entirely upon the alleged invasion of individual rights, but as well upon the broad principle that the public are entitled to protection from the use of previously appropriated names or symbols in such a manner as may deceive them by inducing or leading to the purchase of one thing for another.\u201d It is apparent that whether such was the intention or not, the name used by appellant is well calculated to deceive the public and give the impression that appellants are producing the original drama known as Sherlock Holmes. Equity will restrain such unauthorized use of a trade-mark. Taylor v. Carpenter, 11 Paige, 292; Hennessy v. Wheeler, 69 N. Y. 271; Walton v. Crowley, 3 Blatch. 440.\nAs the owner of \u201c the exclusive right to produce, perform and represent said drama under the title \u2018 Sherlock Holmes\u2019\u201d in the United States, appellee is entitled to maintain the bill. Objection is made that the decree does not find any facts. It finds that the allegations of the bill are true. Appellant did not answer but stood on his general demurrer, thus admitting all facts well pleaded. Harris v. Cornell, 80 Ill. 54-62. The bill is properly verified, and its material averments justify the decree.\nFinding no error in the record the decree of the Circuit Court is affirmed.", "type": "majority", "author": "Mr. Presiding Justice Freeman" } ], "attorneys": [ "Adolph Marks, attorney for appellant.", "Thomas S. Hogan, attorney for appellee." ], "corrections": "", "head_matter": "Hopkins Amusement Company v. Charles Frohman.\n1. Trade-mark\u2014Equity will Restrain the Unauthorized Use of.\u2014 A person has a valuable interest in the good will of his trade or business, and having adopted a particular label, sign or trade-mark indicating to his customers that the article bearing it is made or sold by him or by his authority, or that he carries on business at a particular place, he is entitled to protection against one who attempts to deprive him of his trade or customers, by using such labels, signs, or trade-mark without his knowledge or consent, and where one has by contract with the author, become the owner of the exclusive right to produce a play based upon a character created in a book by such author, and has adopted a name for such drama as his trade-mark to distinguish it from all other productions, plays or dramas, he has the exclusive right to produce, perform and represent such drama under such title.\n2. Same\u2014Ground upon Which Simulation is Prohibited.\u2014The enforcement of the doctrine that trade-marks shall not be simulated does not depend entirely upon the alleged invasion of individual rights but as well upon the broad principle that the public are entitled to protection from the use of previously appropriated names or symbols in such a manner as may deceive them by inducing or leading to the purchase of one thing for another.\nBill for an Injunction.\u2014Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.\nAffirmed.\nOpinion filed October 24, 1902.\nThis is an appeal from a decree perpetually enjoining appellant from advertising, announcing, producing or performing a play entitled \u201c Sherlock Holmes, the Detective,\u201d under the trade-mark \u201c Sherlock Holmes \u201d or from in any manner using the same.\nThe bill of complaint sets forth at length that appellee, a resident of Hew York, is a theatrical manager; that A. Gonan Doyle is the author of a book entitled \u201cThe Sign of the Four,\u201d in which he created the character known as \u201c Sherlock Holmes,\u201d a detective; that said Conan Doyle and one William Gillette, a dramatist and actor, collaborated and composed a drama in four acts, the plots, scenes, incidents and characters of which were original with said Doyle and Gillette, to which they gave the name of Sherlock Holmes; that appellee contracted with said Doyle and Gillette and acquired the exclusive right to produce, perform and represent said drama for five years from December 7,1898, in the United States and elsewhere; that he produced the same in the principal cities of the United States at an expense of many thousands of dollars; that the receipts therefrom have been large; that the name of said play, to wit, \u201c Sherlock Holmes,\u201d is of great value as a trade-mark, and that appellee has expended large sums of money in advertising said play under the trade-mark name of \u201c Sherlock Holmes; \u201d that appellant is the lessee and. manager of Hopkins Theatre, Chicago, and has advertised and threatens to produce a play commonly known as a detective play at said Hopkins Theatre, under the name \u201c Sherlock Holmes,Detective,\u201d and that \u201c in order to secure to itself the fame and benefit of appellee\u2019s said drama and trade-mark and in order to deceive the public and make the said play so advertised by the defendant as aforesaid appear to be the play of your orator, to wit, the drama of \u2018 Sherlock Holmes\u2019 collaborated by A. Conan Doyle and William Gillette, is wrongfully and fraudulently using your orator\u2019s said trade-mark, with out the consent of your orator.\u201d\nAppellant filed a general demurrer to the bill, which on hearing was overruled. Appellant elected to stand by its demurrer, whereupon the court entered its decree finding \u201c that the allegations of said complainant\u2019s bill herein are true \u201d and granting appellee relief as prayed.\nThe errors assigned are that the court erred in granting an injunction, in overruling the demurrer, and in failing to dissolve the injunction and dismiss the bill.\nAdolph Marks, attorney for appellant.\nThomas S. Hogan, attorney for appellee." }, "file_name": "0613-01", "first_page_order": 643, "last_page_order": 647 }