{ "id": 5173021, "name": "N. K. Fairbank Company v. Swift & Company", "name_abbreviation": "N. K. Fairbank Co. v. Swift & Co.", "decision_date": "1896-06-01", "docket_number": "", "first_page": "477", "last_page": "495", "citations": [ { "type": "official", "cite": "64 Ill. App. 477" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "136 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2992620 ], "opinion_index": -1, "case_paths": [ "/ill/136/0215-01" ] }, { "cite": "135 N. Y. Rep. 37", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "116 Ill. 143", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "54 Ill. 439", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5276067 ], "pin_cites": [ { "page": "462" } ], "opinion_index": -1, "case_paths": [ "/ill/54/0439-01" ] }, { "cite": "47 Fed. Rep. 712", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3721969 ], "pin_cites": [ { "page": "716" } ], "opinion_index": -1, "case_paths": [ "/f/47/0712-01" ] }, { "cite": "70 Fed. Rep. 382", "category": "reporters:federal", "reporter": "F.", "opinion_index": -1 }, { "cite": "37 Fed. Rep. 360", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3736693 ], "opinion_index": -1, "case_paths": [ "/f/37/0360-01" ] }, { "cite": "42 Fed. 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Rep. 716", "category": "reporters:federal", "reporter": "F.", "opinion_index": -1 }, { "cite": "149 U. S. 572", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": -1 }, { "cite": "116 Ill. 137", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2886610 ], "weight": 2, "pin_cites": [ { "page": "146" }, { "page": "146" } ], "opinion_index": -1, "case_paths": [ "/ill/116/0137-01" ] }, { "cite": "66 N. Y. 69", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2163467 ], "opinion_index": -1, "case_paths": [ "/ny/66/0069-01" ] }, { "cite": "150 U. S. 467", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": -1 }, { "cite": "23 S. W. 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S. 566", "category": "reporters:federal", "reporter": "U.S.", "weight": 2, "opinion_index": -1 }, { "cite": "70 Iowa 481", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8650468 ], "opinion_index": -1, "case_paths": [ "/iowa/70/0481-01" ] }, { "cite": "122 Mass. 139", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2134629 ], "opinion_index": -1, "case_paths": [ "/mass/122/0139-01" ] }, { "cite": "138 N. Y. 252", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 22278 ], "opinion_index": -1, "case_paths": [ "/ny/138/0252-01" ] }, { "cite": "67 Fed. Rep. 899", "category": "reporters:federal", "reporter": "F.", "opinion_index": -1 }, { "cite": "39 Conn. 450", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 8846758 ], "opinion_index": -1, "case_paths": [ "/conn/39/0450-01" ] }, { "cite": "70 Fed. 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S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5632302 ], "opinion_index": 0, "case_paths": [ "/us/101/0051-01" ] }, { "cite": "42 Am. Rep. 294", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "23 Am. Rep. 22", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "40 Ill. App. 430", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5020927 ], "opinion_index": 0, "case_paths": [ "/ill-app/40/0430-01" ] }, { "cite": "89 N. Y. 292", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2184463 ], "opinion_index": 0, "case_paths": [ "/ny/89/0292-01" ] }, { "cite": "116 Ill. 137", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2886610 ], "opinion_index": 0, "case_paths": [ "/ill/116/0137-01" ] }, { "cite": "66 N. Y. 69", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2163467 ], "opinion_index": 0, "case_paths": [ "/ny/66/0069-01" ] }, { "cite": "32 Fed. Rep. 97", "category": "reporters:federal", "reporter": "F.", "opinion_index": 0 }, { "cite": "23 Hun 632", "category": "reporters:state", "reporter": "Hun", "opinion_index": 0 } ], "analysis": { "cardinality": 1525, "char_count": 37425, "ocr_confidence": 0.539, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15599731876259967 }, "sha256": "66b92f5db013e061b0a1fc8c2e67b51e7e499935d4c96431fbb89e1793445469", "simhash": "1:fb2aafb0a6fe8abf", "word_count": 6557 }, "last_updated": "2023-07-14T18:42:36.948645+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "N. K. Fairbank Company v. Swift & Company." ], "opinions": [ { "text": "Mr. Justice Waterman\ndelivered the opinion of the Court.\nThis is an appeal from the decree dismissing a bill filed by the if. K. Fair bank Company, a corporation organized under the laws of the State of Illinois, against Swift & Company? also a corporation organized under the laws of this State. The suit was brought to restrain an alleged infringement of two trade-marlcs, which are the property of appellant, and also to protect the appellant against an alleged unfair competition in business.\nIt appears from the evidence that the contending parties each manufacture very similar substances ; that the appellant was the first to make practicable for common use in cooking, a preparation made from cotton seed oil, for which preparation it coined the name \u201c cottolene,\u201d and that to popularize the use of the same, and to make the public acquainted therewith, it has for a number of years expended in advertising very large sums of money\u2014as one witness testified, as much as $100,000 per annum; that the manufacture carried on by the defendant of cotton seed oil for cooking purposes, was by it begun some time after the complainant had engaged in such business, and after complainant had obtained\u2019its trade-marks and introduced its manufacture to the public under the name of \u201c cottolenethat the defendant coined and has made use of the word \u201c cotosuet \u201d to designate its product; that the principal ingredient of each of the preparations is cotton seed oil, a small quantity of beef suet stearine being added thereto.\nThe complainant charged that the defendant, \u201cfor the purpose of creating upon the trade and public the false impression that said defendant\u2019s product is in reality the product of complainant, or that the defendant\u2019s product is the same as that of the complainant and does not differ therefrom as the complex product of one manufacturer commonly differs from a similar product of the same general class made by another manufacturer and for the purpose of deceiving or enabling dealers to deceive and impose upon persons, and especially the careless and uninformed and those ignorant of the English language Avho were accustomed or disposed to buy for trade or consumption the cottolene made by the complainant, by passing off and imposing upon such persons the product of defendant in lieu of that of complainant, and for the purpose of trespassing upon the good will of the public towards complainant, and unlawfully and wrongfully securing to defendant trade which of right belongs to complainant, defendant has made and is now using upon its said goods false and fraudulent marks, signs and tokens,\u201d setting forth a particular description of such alleged false and fraudulent marks, signs and tokens, among which is that the word \u201ccotosuet \u201d is so used by the defendant.\nNo person is entitled to represent his wares as being the goods of another man, or articles of his manufacture as having been made by another, and no person is by the law permitted to use any mark, sign, symbol, name, device or other means, whereby he makes a false representation, or deceives as to his own goods, or as to the goods of another, or whereby, without himself making a false representation to a buyer who purchases from him, he enables such buyer to tell a lie or to make an untrue representation to somebody else who is the ultimate customer. Mor is it a defense to an action, the gist of which is a charge of deception, to reply that the words uttered by the defendant were the literal truth, for the truth may be stated in a way likely to, and that does, deceive. What is required is that a party shall not conduct his business so that by what he says or does, he deceives customers to their injury, or to that of a competitor.\nA man may not use his own name for the purpose of deception, and such fraudulent use will be enjoined. Fair competition in business is legitimate and promotes the public good, but an unfair appropriation of another\u2019s business by using his name or trade-mark, or an imitation thereof calculated to deceive the public, is not permissible and will be enjoined by a court of equity. Hazleton Boiler Co. v. Hazleton Tripod Boiler Co., 40 Ill. App. 430; Same, 142 Ill. p. 509; Reddaway v. Banhan, House of Lords, opinion filed March 26, 1896; Celluloid Co. v. Cellonite Co., 32 Fed. Rep. 97.\nAs has frequently been said, it is not often the case' that one intending to palm off his goods as those of another, copies entirely the marks, signs, brands or trade-marks of his rival; what he does is to imitate, more or less closely, in such a way as to deceive the unwary or ordinary observer.\nWhat degree of resemblance is necessary in order to warrant the issuing of an injunction to prevent the fraudulent use of trade-marks, or to prevent the fraudulent use of resemblances to trade-marks, or to stop unfair competition in business, must necessarily always continue to be a question which can not be settled by rules applicable to all cases.\nWhile the court is not bound to interfere where ordinary attention will enable the purchasers to discriminate between the trade-marks used on the goods manufactured by different parties, nevertheless, the character of the article, the use to which it is put, and the kind of people who are likely to ask for it, as well as the manner in which it is probable it will be ordered, must not be lost sight of. Popham v. Cole, 66 N. Y. 69; 23 Am. Rep. 22, and cases there cited; Morgan\u2019s Sons Co. v. Troxell, 89 N. Y. 292; 42 Am. Rep. 294; Manufacturing Co. v. Francis, 101 U. S. 51; Ball v. Siegel, 116 Ill. 137; Reed v. Richardson, 45 L. T. (N. S.) 54; Beard v. Turner, 13 Id. 736; Leidesdorf v. Flint, 7 N. W. Rep. 174; Eggers v. Heink, 63 Cal. 445; Morgan\u2019s Sons Co. v. Troxell, 23 Hun 632; Ewing v. Johnston, L. R. 18, Ch. Div. 612; Apollo naris Co. v. Sherer, 22 Fed. Rep. 22.\nApplying these principles to the case at bar, we are, from an examination of the evidence, to determine whether defendant has conducted itself so that its goods are represented or made to appear as the goods of the complainant, and whether the defendant, without making a direct false representation to any of its customers, has so conducted itself as to enable such customers to make a false representation to somebody else who is to be the ultimate customer. Has it been guilty of unfair competition in business?\nAll practices between rivals in business which tend to engender unfair competition, are odious, and will be suppressed by injunction. Ho man will be permitted to make use of signs or tokens which serve to confuse the identity of his business Avith that of another, or to mislead the public, and thus divert custom from his competitor to himself.\nIt is urged that the defendant, knowing the great success which had attended the endeavor to sell the complainant\u2019s product under the name \u201c cottolene,\u201d deliberately chose as a designation for its, the defendant\u2019s, product, the word \u201ccotosuet,\u201d intending thereby to confuse the public as to the identity of the product of the complainant and that of the defendant, and that the use of the word \u201c cotosuet \u201d has had such effect.\nWe do not agree with what has been said in one case, that the use of a sign or token so similar to that of a rival as that there is a possibility that confusion may arise therefrom, is sufficient to call for the interposition of a court of equity. Confusion is possible under almost any circumstances. The question is not what is possible, but what is probable. The word \u201c cottolene,\u201d from its similarity of formation to the words gasolene, naphthalene, benzolene, petrolene, and other chemical names, indicates an article derived substantially entirely from a product of the cotton plant; while the word \u201c cotosuet \u201d indicates a substance derived from a product of the cotton plant and suet; and we do not think that an ordinary purchaser of such articles would be misled by the term \u201c cotosuet \u201d into purchasing it, thinking he was obtaining what is known as \u201ccottolene.\u201d We can well understand that a person who desired to obtain, for cooking purposes, a vegetable shortening, might easily be induced by a grocer to accept \u201ccotosuet,\u201d \u201ccookene,\u201d \u201cgolden suet,\u201d \u201csuetene,\u201d \u201ccornene\u201d \u201cclarelene,\u201d \u201cgolden shortening,\u201d or \u201c supreme shortening \u201d \u2014 names applied by other manufacturers to their respective products of articles similar to \u201c cottolene \u201d\u2014although such purchaser had distinctly asked for \u201c cottolene.\u201d It is well known that retail vendors can, to the ordinary purchaser, sell several similar articles, that Avhich they, as such vendors, endeavor to dispose of, and that if the articles are substantially alike, the seller will hear no \u201ckicking,\u201d as, in the present case, one witness testified he heard none when he gave \u201c cotosuet \u201d to people who inquired for \u201ccottolene.\u201d There are doubtless in this country millions of people to whom, if Seipp\u2019s beer were given when they called for Blatz\u2019s, or vice versa, would make no complaint.\nTo a person of ordinary observation and attention, the distinction between \u201ccottolene\u201d and \u201ccotosuet\u201d is obvious. Only a person of more than average heedlessness and carelessness would mistake one for the other.\nWe have examined a large number of exhibits in the way of pictures, signs and devices, employed respectively by appellant and appellee to advertise and sell their respective goods, and do not find, except in one instance, any such resemblance as would deceive a person of ordinary attention \u2014 having reference in what we say to the class of persons by whom these respective products are likely to be inquired for and bought, and the way and manner in which they are sold \u2014 nor do we find any evidence that the defendant has intended to palm off its goods as the product of the complainant; on the contrary, we think in every instance, the brands, marks and advertisements of \u201c cotosuet \u201d contain a plain and easily recognizable statement; indeed, one by which it is substantially impossible for an observer to fail to see that the \u201c cotosuet \u201d advertised or branded is made only by Swift & Company, the defendant.\nOne of the trade-marks of the complainant is that of the head of a steer surrounded by cotton bolls. The defendant has made use of the head of a steer surrounded by cotton bolls. The steers do not look alike; the dissimilarity between the two heads is very apparent; yet as the picture of the steer\u2019s head, made by the complainant, has surrounding it the words \u201c Cottolene, the new shortening, made by The 1ST. K. Fairbank Company, Chicago, U. S, A.,\u201d and the representation of a steer\u2019s head used by the defendant has about it the words, \u201c Cotosuet, the new shortening, made only by Swift & Company, Chicago, IT. S. A.,\u201d we are of the opinion that there is such similarity between these two devices, cards or advertisements, as that there is a tendency to deceive, and while in the very great amount of advertising matter put forth by the respective parties, it is not strange that as to more or less of the same there should be, without any intention to deceive, considerable similarity in \u25a0the devices used by one to those employed by the other, we think, without reference to whether the device of the steer\u2019s head surrounded by cotton bolls used by the defendant was without the intention to make somethin\u00bb\nO\nsimilar to that of the complainant, made use of, yet it is a thing it ought not to do; and this, we understand, the defendant concedes, and insists that it has altogether ceased to use such device; and there being no evidence to the contrary of this statement, we do not think that it is necessary an injunction should go as to the use of such device by the defendant.\nAs to the use of the word \u201c cotosuet,\u201d and devices other than the steer\u2019s head, before mentioned, employed by the defendant, of which complaint is made, we do not pnt our affirmance of the decree of the Circuit Court upon the ground that careful buyers will not be deceived, but that persons of ordinary attention, such as will be likely to ask for and desire to buy complainant\u2019s product, will not be deceived. The complainant asks that an answer may be made to this question: \u201c Why did the defendant coin and use the simulated word \u2018 cotosuet ? \u2019 \u201d The officers and agents of the defendant have testified how they came to make use of that word, and there is nothing to show that what they said in this regard is not true. No court, rolling back the record of time, can open, read and know the real intent and purpose and the actual motive governing the action of the defendant in coining the word \u201c cotosuet \u201d as a name for its product. Under the testimony and the circumstances of this case, it seems to us it made use of such word because, as clearly as any short word that could be created, it briefly designated the materials from which the defendant\u2019s product is made, and that it was not chosen for the purpose of misleading the public or defrauding the complainant out of anything to which it was entitled. We do not find that the defendant has made use of its carts and wagons of complainant\u2019s registered and well known trade mark or devices similar thereto, to such an extent or in such a manner as to cast suspicion upon its purposes, or show that it intended to perpetrate a fraud either upon the public or the complainant; and it seems to us that in printing on its boxes, cards, factory, posters, and elsewhere, the sentence, \u201c Cotosuet, the new shortening, made only by Swift & Co.\u201d it meant to proclaim to the world that \u201c cotosuet \u201d was a new shortening made only by it, the defendant. The complainant admits that more than a dozen manufacturers are making in large quantities, as does it, a new shortening, the principal ingredient of which is cotton seed oil. Notwithstanding this, the complainant continues to publish as an advertisement the lines, \u201c Cottolene, the new shortening, made by the N. K. Fairbank Co.\u201d We do not understand that by this the complainant means to declare that it is the only manufacturer of a new shortening, or that the words \u201c the new shortening,\u201d can only truthfully be applied to its product, but that by such advertisement it proclaims that \u201c cottolene \u201d is the new shortening by it made. The complainant does not claim that the words, \u201c the new shortening,\u201d are its trade-mark, or that it has acquired any right to the exclusive use of the same; its insistence merely is, that those words having been used by it in connection with its advertisement of \u201c cottolene,\u201d those words used by the defendant in connection with its advertisement of \u201c cotosuet \u201d tend to deceive the unwary. So it may be said, do the words \u201c Chicago, U. S. A.,\u201d employed by both complainant and defendant, have a tendency to confuse. Doubtless, there would be less danger of confusion if complainant\u2019s product was made only in Chicago, and the defendant\u2019s in St. Louis, and the advertisements of the respective parties respectively so stated. But as we have before stated, we are not concerned in this case with possible confusion, or with mistakes that may be made by persons of more than average carelessness and heedlessness, but with confusion likely to arise in the mind of the ordinary observer of the class and condition of those whom it is probable will desire to purchase \u201c cottolene,\u201d under the circumstances and in the manner in which it is offered for sale. As to such circumstances and such manner, we do not think the complainant is being, or will be, unduly prejudiced by anything the defendant is doing. The court below, therefore, in our judgment, properly refused to enjoin the defendant, as prayed by the complainant, and its decree is affirmed.", "type": "majority", "author": "Mr. Justice Waterman" } ], "attorneys": [ "Rowland Cox, Oliver & Mecartney, and John S. Brown, attorneys for appellant.", "Bond, Adams, Pickard & Jackson, attorneys for appellee." ], "corrections": "", "head_matter": "N. K. Fairbank Company v. Swift & Company.\n1. Trade-marks.\u2014The Use of, When to be Enjoined.\u2014A man. may not use his own name for the purpose of deception, and such fraudulent use will be enjoined. Fair competition in business is legitimate, and promotes the public good, but an unfair appropriation of another\u2019s business by using his name or trade-mark, or an imitation thereof, caloulated to deceive the public, is not permissible and will be enjoined by a court of equity.\n2. Same\u2014Degree of Resemblance.\u2014What degree of resemblance is necessary in order to warrant the issuing of an injunction to prevent the fraudulent use of resemblances to trade-marks, or to stop unfair competition in business, must necessarily always continue to be a question which can not be settled by rules applicable to all cases.\n3. Same\u2014Where a Court Will not Interfere.\u2014While the court is not bound to interfere where ordinary attention will enable the purchasers to discriminate between the trade-mark used on the goods manufactured by different parties, nevertheless the character of the article, the use to which it is put, and the kind of people who are likely to ask for it, as well as the manner in which it is probable it will be ordered, must not be lost sight of.\n4. Injunction\u2014 Unfair Competition.\u2014All practices between rivals in business which tend to engender unfair competition are odious, and will be suppressed by injunction. No man will be permitted to make use of signs or tokens which serve to confuse the identity of his business with that of. another, or to mislead the public, and thus divert custom from his competitor to himself.\n5. Same\u2014\u201c Cottolene \u201d and \u201c eotosuet.\" \u2014The use of the word \u201c cotosuet \u201d as a trade-mark is not an infringement upon the right to use the word \u201ccottolene.\u201d\nBill for Injunction.\u2014Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.\nHeard in this court at the March term, 1896.\nAffirmed.\nOpinion filed June 1, 1896.\nRowland Cox, Oliver & Mecartney, and John S. Brown, attorneys for appellant.\nTo determine whether or not a label is fraudulent, the controlling consideration is the effect which its statements have upon the public. The circumstance that the statements may be, in the abstract, untrue is not in itself material. Thus, the continued use by a manufacturer of the name of his predecessor in business after the death of his predecessor as indicating the manufacturer of the goods, has been justified in many cases. Kidd v. Johnson, 100 U. 8. 618; Hoxie v. Chaney, 143 Mass. 592; Russia Cement Co. v. Le Page, 147 Mass. 206; Feder v. Benkert, 70 Fed. Rep. 613; Sebastian on Trade-marks (3d Ed.), 232; Meriden Britannia Co. v. Parker, 39 Conn. 450.\nFraud can not be presumed. The question is not what was the technical, legal effect of all the transfers and changes in the business of the various firms and corporations, but what the complainant believed, and had a right to believe, regarding them. If its officers asserted only what they honestly believed to be true, with no intent to mislead the public, there is no fraud. Even though the complainant took too sanguine a view as to its derivative rights, it can not be convicted of fraud if it honestly believed that it possessed them.\u201d' 67 Fed. Rep. 899.\nIt was said by the Court of Appeals of Flew York: \u201cEvery trade-mark case is a law unto itself\u201d (138 N. Y. 252). By the Supreme Judicial Court of Massachusetts : \u201c Every case of trade-marks depends very much upon its own circumstances\u201d (122 Mass. 139). By the Supreme Court of Iowa (70 Iowa 481), referring to the cases : \u201c They simply indicate the path which may be followed to advantage.\u201d In many other cases it is said that the courts will deal with each particular controversy as it arises, applying the accepted doctrines to the facts as they are made to appear.\nRival manufacturers may lawfully compete for the patronage of the public in the quality and price of their goods, in the beauty and tastefulness of their enclosing packages, in the extent of their advertising, and in the employment of agents, but they have no right, by imitative devices, to beguile the public into buying their wares under the impression that they are buying those of their rivals. Coats v. Merrick Thread Co., 149 U. S. 566.\nThe question whether the resemblance between the designs upon the complainants\u2019 and the defendants\u2019 spools of thread was such as to indicate an unlawful intent was determined by comparison of the two designs. In the case at bar an intention on the part of the defendants to impose upon the public by means of the dress in which they put up their manufacture is found proved. A comparison of the two articles shows that the imposition and injury to the complainants is a natural result of putting upon the market defendants\u2019 article, dressed up as they dress it. Von Mumm v. Frash, 56 Fed. Rep. 837.\nThe court must necessarily determine on the evidence and on an examination of the instrumentalities which have been used by the defendant whether their use is inequitable and calculated to produce confusion and mistake. Munro v. Tousey, 129 N. Y. 38; Fischer v. Blank, 138 N. Y. 244; T. A. Vulcan v. Meyers, 139 N. Y. 364; Von Mumm v. Frash, 56 Fed. Rep. 830; Coats v. Merrick Thread Co., 149 U. S. 562; Reddaway v. Bentham Co., L. R., 1892, 2 Q. B. R. 640; Amoskeag Mfg. Co. v. Spear, 2 Sand. (S. C.) 599.\nAn injunction ought to be granted whenever the design of a person who imitates a trade-mark, be his design apparent or proved, is to impose his own goods upon the public as those of the owner of the mark, and the imitation is such that the success of the design is a probable or even possible consequence.\nThis language was used in Amoskeag Man. Co. v. Spear, 2 Sand. S. C. 599, a case which has been repeatedly referred to by the Supreme Court of the United States and other courts, 54 Illinois 443, as the leading American adjudication. See 13 Wall. 320; 96 U. S. 255; 128 Ib. 524; 138 Ib. 547; see also Von Mumm v. Frash, 56 Fed. Rep. 837, Co-operative Society v. Co-operative Society, 8 British Patent, Design and Trade-mark Cases, 429.\nIt is the liability to deception which the remedy may be invoked to prevent. It is sufficient if injury to the plaintiff\u2019s business is threatened or imminent to authorize the court to intervene to prevent its occurrence. Taendsticksfabriks, etc., v. Myers, 139 N. Y. 367.\nThe fact that careful buyers, who scrutinize trade-marks carefully, are not deceived, does not materially affect the question. It only shows that the injury is less, not that there is no injury. Mo amount of diligence on the part of the petitioners will guard against this injury. An injunction is their only adequate relief. Britannia Co. v. Parker, 39 Conn. 460.\nWe must not lose sight of the character-of the article, the use to which it is put, the kind of people who ask for it, and the manner in which it is ordered. Very broad scene-painting will deceive an ignorant, thoughtless or credulous domestic looking for an article in common daily use and of no particular interest to her personally. Morgan\u2019s Sons Co. v. Troxell, 23 Hun 632.\nIf the false is only colorably different from the true ; if \u2022 the resemblance is such as to deceive a purchaser of ordinary caution; or if it is calculated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade mark, the injured party is entitled to relief: Coleman v. Crump, 70 N. Y. 573; see also Singer Co. v. Loog, 8 App. Cas. 18; Read v. Richardson, 45 L. T. R.,N. S. 54; Brown v. Mercer, 37 N. Y. Sup. Ct. 285; Lever v. Goodwin, 36 Ch. D. 1; Celluloid Co. v. Cellonite Co., 32 Fed. Rep. 1001.\nCottolene is a proper and valid trade mark. Although it may suggest cotton seed oil, it is not sufficiently descriptive to render it invalid as a trade-mark, under the recent decis- \u25a0 ions. The rule that names suggestive of the nature or composition of articles may be valid trade-marks if not too accurately descriptive of their character or quality, has been applied in Burnett v. Phalon, 9 Bosw. 192, to the use of the word \u201c Cocoaine;\u201d in Manufacturing Co. v. Ludeling, 22 Fed. 823, to \u201c Maizena;\u201d in Leonard v. Lubricator, 38 Fed. 922, to \u201c Yalvoline;\u201d in Battle v. Finlay, 45 Fed. 796, to \u201cBromidia;\u201d Keasbey v. Chemical Works, 37 N. E. Rep. 476, N. K. Fairbank Co. v. Central Lard Co. 64 Fed. Rep. 134.\nIn numerous cases the use of misleading signs has been prohibited. Peterson v. Humphrey, 4 Abb. R. R. 394; Colton v. Thomas, 2 Brews. 308. See also Prince Albert v. Strange, 2 De G. & S. M. 652; Franks v. Weaver, 8 L. T. 510; Thorley\u2019s Cattle Food Co. v. Massan, 14 Ch. Div. 763; Williams v. Johnson, 2 Bos. 1; Clark v. Clark, 25 Barb. 76.\nAlso the use of forms and styles of packages which, in the abstract, were publici juris. Sawyer v. Horn, 1 Fed. Rep. 24; Fischer v. Blank, 139 N. Y. 252; McLean v. Fleming, 99 U. S. 252;\nAnd the use of vehicles or omnibuses painted to simulate those used by others. Knott v. Morgan,.2 Keen 213; Marsh v. Billings, 7 Cush. 322.\nAnd also the use of misleading flags by a real estate auctioneer. Johnson v. Hitchcock, N. Y. D. R., Nov. 24,1888.\nIn a case relating to unfair competition in business a chancellor has plenary powers, being governed only by his own enlightened intelligence and conscience. He may direct and control every part and incident of the defendant\u2019s conduct, and enjoin any and every act which is of doubtful purpose and effect. Law. Man. Co. v. Tenn. Man. Co., 138 U. S. 537; Thompson v. Montgomery, 41 Ch. Div. 35; Orr, Ewing & Co. v. Johnston & Co., 7 App. Cas. 219; Koehler v. Sanders, 122 N. Y. 74; Meyer v. Bull Medicine Co., 58 Fed. Rep. 884; Pillsbury v. Pillsbury, Washburn, etc., 64 Ib. 841.\nIt was contended that, \u201c Cotosuet \u201d is an imitation of \u201c Cottolene \u201d and its use should Ije enjoined.\nThere are not a few reasons of persuasive force why it should be held that \u201c Cotosuet \u201d so closely resembles \u201c Cottolene \u201d that there is danger of misconception, mistake and fraudulent substitution.\nThere is no doubt that the differences between the two words are not such as to compel a conclusion in defendant\u2019s favor. On the contrary, the resemblances are not less significant than those which have been held to be sufficient in many instances.\nThe difference between \u201c Cottolene \u201d and \u201c Cotosuet \u201d is not such as to justify the defendant\u2019s choice.\nIn Burnett v. Phalon, 3 Keys 594, the two words were: Cocaine and Cocoine. In Rowley v. Houghton, 2 Brewst. 303, the two words were: Hero and Heroine. In Wamsutta Mills v. Allen, Cox\u2019s Manual 660, the two words were : Wamsutta and Wamyesta. In Glencove Mfg. Co. v. Ludeling Mfg. Co., 22 Fed. Rep. 823, the two words were: Maizena and Maizliarina. In Celluloid Co. v. Cellonite Co., 32 Fed. Rep. 94, the two words were : Celluloid and Cellonite. In Enoch Morgan\u2019s Sons Co. v. Edler, Cox\u2019s Manual 713, the two words were; Sapolio and Saponite. In Estes v. Leslie, 29 Fed. Rep. 91, the two words were: Chatter-Box and Chatter Book. In each of the above mentioned instances the use of the simulated word was restrained.\nSimilarity, not identity, is the usual recourse when one party seeks to benefit himself by the good name of another. 32 Fed. Rep. 97.\nA very recent case involved, Momaja and Mojava. American Grocery Co. v. Bennett, Sloan & Co., 68 Fed. Rep. 539.\nIn that case the court said : \u201c In the light of decisions which find infringing resemblances between \u2018 Cottoleo \u2019 and Cottolene\u2019 between Cellonite \u2019 and Celluloid/ between \u2018Wamyesta\u2019 and \u2018Wamsutta,\u201d between Maizharina\u2019 and Maizena/ between Saponite \u2019 ahd Sapolio/ (see citations in 64 Fed. Rep. 135), there is little difficulty in disposing of the case.\u201d\nBond, Adams, Pickard & Jackson, attorneys for appellee.\nThe appellant has no right in the alleged trade-marks, inasmuch as it appears from the record that such marks are at all times used solely upon the product of another person; in other Words, that a right in the abstract can not be had in any trade-mark.\nThe primary object and purpose of a trade-mark is to indicate origin. Lawrence Mfg. Co. v. Tennessee Mfg. Co., 131 U. S. 537, 546; Columbia Mill Co. v. Alcorn, 150 U. S. 463; Canal Co. v. Clark, 13 Wall. 311; Manhattan Medicine Co. v. Wood, 108 U. S. 218.\nThe primary and the sole object of the trade-mark is to distinguish the goods as being a particular manufacture, or as belonging to a particular party. Moorman et al. v. Hoge et al., 17 Fed. Cases 715, 718.\nThere is no right in the abstract to a trade-mark; Browne on Trade-marks, Sec. 66, Sec. 301, Sec. 676.\nA false notice as to the manufacturer or place of manufacture is fatal. Manhattan Medicine Co. v. Wood, 108 U. S. 218; Joseph v. Mockowski, 96 Cal. 518; California Fig Syrup Co. v. Putnam, 66 Fed. Rep. 750; Prince Mfg. Co. v. Prince\u2019s Metallic Paint Co. 135 N. Y. 37; Koehler v. Sanders, 122 N. Y. 76; Columbia Mill Co. v. Alcorn, 150 U. S. 463; Conell v. Reed, 11 Mass. 477; Browne on Trademarks, Sec 80; Siegert v. Abbott, 61 Md. 276.\nThat this defense is one that need not be specifically pleaded, but will be enforced by the court to prevent fraud upon the public. See Simmons Med. Co. v. Mansfield Drug Co., 23 S. W. Rep. 169.\nThe appellee does not infringe either of the alleged trade-marks, even though the same could be held valid. By the confused use of such marks they are uncertain and void.\nTrade-marks are addressed to ordinary purchasers or observers-\u2014-to those who give ordinary attention. Columbia Mill Co. v. Alcorn, 150 U. S. 467; Popham v. Cole, 66 N. Y. 69; Browne on Trade-marks (2d Ed.), Sec. 385, p. 384; Ball v. Siegel, 116 Ill. 137, 146; Coats v. Merrick Thread Co. 149 U. S. 572; Falkinburg v. Lucy, reported in Cox\u2019s American Trade-mark Cases, No. 448, p. 461.\nIn a clear case of actual deception caused by a defendant\u2019s mark there is not much need of testimony. In a doubtful case testimony is necessary. Celluloid Co. v. Read, 47 Fed. Rep. 716; Ball v. Siegel, 116 Ill. 146; Legget & Myers Co. v. Finzer, 128 U. S. 184.\nAs to the consideration to be given Patent Office registrations of two trade-marks, when suit is brought to restrain the use of one of such marks as being an infringement of the other, see Browne on Trade-marks (2d Ed.), 345; Dausman & Drummond Tobacco Co. v. Ruffner et al., 17 Fed. Cases 718.\nCompetition when conducted fairly and with no intent to deceive gives no ground for complaint. It is to be encouraged rather than condemned. Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 509; Coats v. Merrick Thread Co., 149 U. S. 566; Brown Chemical Co. v. Meyer, 139 U. S. 544.\nA trade-mark must be clear, well defined, certain. Bolander v. Peterson, 136 Ill. 215; Candee v. Deere, 54 Ill. 349, 456; Browne on Trade-marks, Sec. 143, p. 162 of 2d Ed., Sec. 89, p. 101.\nThat a general type or \u201c concept \u201d can not be exclusively appropriated, see Browne on Trade-marks, Sec. 89d\u201e\nEo one can have more than one trade mark at one time for the same goods. Candee v. Deere, 54 Ill. 456.\nThe trade-mark \u201c must not be deviated from at the suggestion of whim or caprice.\u201d Candee v. Deere, 54 Ill. 456.\nThe court is not bound to interfere where ordinary attention will enable purchasers to discriminate between the trade-marks used by different parties. Ball v. Siegel, 116 Ill. 137, 146; Coats v. Merrick Thread Co., 149 U. S. 562, 573.\nWhile no law; is needed to support the proposition that complainant can not be allowed to take advantage of its own wrong, we cite here some cases relating to advertisements, signs, packages, etc., as such matters are largely relied upon by appellant.\nWithout testimony, no inference of any fraudulent intent can be drawn from the fact that packages are similar in shape, structure, etc. Ball v. Siegel, 116 Ill. 144; Morgan Sons & Co. v. Troxell, 89 N. Y. 292.\nThe object of using a barrel, box, or other package, is to contain, carry, protect and preserve the goods, or for their convenient handling; and form of some kind and dimensions, are essential in a box, barrel or package, without which it can have no existence. But the size or shape of the barrel, box or package can scarcely be considered a mark, nor can that be the sense in which the terms \u201c form \u201d or \u201c device \u201d are used when employed as a definition of a mark, used for purposes of trade. So general is the idea that the symbol, figure, letter, form or device, used for a trademark, must be a mark, impressed, cut, engraved, stamped, cast upon, or in some way wrapped around, or appended to, the article, or the package, as something independent of the article itself, or the package used to contain it, that it is carried into the statutes of some States, where it is, doubtless only intended to adopt the common law definition. Moorman v. Hoge, 17 Fed. Cas. 718.\nThat the word \u201c Cottolene \u201d can not be appropriated as a trade-mark, for the reason that it is the proper name of the goods.\nGeneric or descriptive words can not be appropriated as trade-marks any more than common or true names. Canal Co. v. Clark, 13 Wall. 311, 323; Burton v. Stratton, 12 Fed. Rep. 700; Wilcox & Gibbs Co. v. Gibbens F. Co., 17 Fed. Rep. 623; Colgan v. Danheiser, 35 Fed. Rep. 150; Rumford Chem. Works v. Muth, 35 Fed. Rep. 524; Clotworthy v. Schepp, 42 Fed. Rep. 62; Brown Chem. Works v. Stearns Co., 37 Fed. Rep. 360.\nA court takes notice, as a matter of law, of the meaning of words. Royal Baking Powder Co. v. Raymond, 70 Fed. Rep. 382.\n\u201c In a clear case of intentional or actual deception, there is not much need of testimony as to the possibility that purchasers would be misled. In a doubtful case testimony is valuable.\u201d Celluloid Co. v. Reed, 47 Fed. Rep. 712, 716. See also note 1, p. 434, of Bowland Cox\u2019s Manual of Trademark Cases, second edition.\nThe law is well settled that no circular, price-list or advertisement, no matter how frequently repeated, can constitute a trade-mark, and it is only in that way appellees have used, and appellants also using it as a generic term, which they had a clear right to do. Candee, Swan & Co. v. Deere & Co., 54 Ill. 439, 462.\nIt is well settled, moreover, that directions, advertisement notices, etc., constitute no part of a trade-mark. Ball et al. v. Siegel et al., 116 Ill. 143.\nProperty in a trade-mark, or rather in the use of a trademark or name, has very little analogy to that which exists in copyrights, or in patents for inventions. The office of a trade-mark is to point out distinctively the origin or ownership of the article to which it is affixed, or, in other words, to give notice who was the producer. Manhattan Medicine Co. v. Wood, 108 U. S. 218; Canal Co. v. Clark, 13 Wall. 311; Joseph v. Mackowski, 96 Calif. 518.\n\u201c A person who comes into a court of equity for an injunction in a case of this kind must come with clean hands; he can not be granted relief upon a claim to the exclusive use of a trade-mark which contains a false representation calculated to deceive the public as to the manufacturer of the article and the place where it is manufactured.\u201d\nA number of cases, including the Manhattan Medicine Company case, are cited in the above case as supporting the doctrine laid down. See also California Fig Syrup Co. v. Putnam, 66 Fed. Rep. 750; Prince Mfg. Co. v. Prince\u2019s Metallic Paint Co., 135 N. Y. Rep. 37; Koehler v. Sanders, 122 N. Y. 76.\nIn Siegert v. Abbott, 61 Maryland 276, the court said: \u201c It is a general rule of law,' in cases of this kind, that courts of equity will not interfere by injunction when there is any lack of truth in the plaintiff\u2019s case; that is, when there is any misrepresentation on his trade-mark or label. Browne on Trade-marks, Sec. 71 and Sec. 74 et seq, \u201d\nIn the recent case of Columbia Mill Co. v. Alcorn, 150 U. S., the court, p. 463, after citing numerous cases, says: \u201c These cases establish the following general propositions : (1) That to acquire the right to the exclusive use of a name, device or symbol, as a trade-mark, it must appear that it was adopted for the purpose of identifying the origin or ownership of the article to which it is attached, or that such trade-mark must point distinctively, either by itself or by association, to the origin, manufacture, or ownership of the article on which it is stamped. It must be designed, as its primary object and purpose, to indicate the owner or purchaser of the commodity, and to distinguish it from like articles manufactured by others. (2) That if the device, mark, or symbol was adopted or placed upon the article for the purpose of identifying its class, grade, style or quality, or for any purpose other than a reference to or indication of its ownership, it can not be sustained as a valid trademarks\u201d\nThe rule has also been stated as follows: \u201c Where no actual or constructive fraud is shown and no intention to harmfully mislead purchasers manifested by the use of instrumentalities that would naturally tend to that result, the rule does not apply, but a false representation as to the place of origin of the article is fatal. \u201d Browne on Trademarks, Sec. 71, p. 80; Manhattan Medicine Co. v. Wood, 108 U. S. 218; Conell v. Reed, 11 Mass. 477, and cases cited.\nThat an abstract right to a trade-mark can not exist is well settled. Browne on Trade-marks, Sec. 676, expresses this idea as follows:\n\u201cWe have seen heretofore that there can not be property in an abstract symbol, whether that be an original design, or word, or emblem; for it is only an index to a certain article of merchandise. A trade-mark ceases to be property the moment that its exclusive use ceases, and it resumes its ideal state. Its conjunction with a corporeal thing is like the union of soul and body. \u201d" }, "file_name": "0477-02", "first_page_order": 475, "last_page_order": 493 }