#### Fitzpatrick Brothers, Appellant, v. John E. Culhane and M. H. Culhane, trading as Halo Chemical Company, Appellees.

Gen. No. 22,641.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1916.

Certiorari denied by Supreme Court (making opinion final).

Affirmed.

Opinion filed February 19, 1917.

Rehearing denied March 5, 1917.

Statement of the Case.

Suit by Fitzpatrick Brothers, a corporation, complainant, against John E. Culhane and M. II. Culhane, trading as Halo Chemical Company, defendants, for alleged infringement of complainant’s trade-mark rights. From a decree dismissing the bill, complainant appeals.

Complainant was the manufacturer of a scouring powder designated by it as “Kitchen Klenzer,” which name it registered May 8, 1912, in the State of Hlinois, as a trade name, and also made application for the registration thereof in the United States Patent Office in 1908, and since. The bill charged the fraudulent •infringement of complainant’s rights in the premises by the sale by defendants of an article for like use under a name embodying the words “Kitchen Cleanser,” and that the defendants threatened to continue such practice, to complainant’s damage to the extent of more than $5,000, and prayed for accounting and injunction. Demurrer to the bill was overruled, and the defendant M. H. Culhane answered, denying all knowledge of the matters and things referred' to or any interest or connection with the business carried on by the defendant John E. Culhane, and the latter answered, denying complainant’s exclusive right in *204the words claimed by it or that complainant had been injured by reason of any act or omission on his part.

Abstract of the Decision.

1. Trade-marks and trade names, § 26 * —when suit properly dismissed as'to codefendant. Evidence held to show that one defendant had no connection with or interest in the business owned by his codefendant involved in a suit for infringement of a trade name, so as to authorize dismissal of the suit as to him.

2. Trade-marks and trade names, § 26*—when evidence is insufficient to show use of particular name or of trade name of another. Evidence held insufficient to show the defendant had used the words “Kitchen Cleanser” as a trade name for the preparation .sold by him or used or copied the advertising matter, trade-mark, or trade name (“Kitchen Klenzer”) of complainant, in a suit for alleged infringement of complainant’s rights in such mark or name.

3. Trade-marks and trade names, § 24*—what does not constitute infringement of trade name. The use of a trade name embodying the words “Kitchen Cleanser,” held to be no infringement upon the trade name “Kitchen Klenzer.”

4. Trade-marks and trade names, § 5*—when name is not entitled to protection. The name “Kitchen Cleanser” is descriptive and not such as to exclude others from its use in business.

Sentz & Jochum, for appellant.

Hirschl & Hirschl, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dever

delivered the opinion of the court.