{ "id": 5189154, "name": "Benjamin Mossler et al. v. Henry Jacobs et al.", "name_abbreviation": "Mossler v. Jacobs", "decision_date": "1896-11-05", "docket_number": "", "first_page": "571", "last_page": "577", "citations": [ { "type": "official", "cite": "66 Ill. App. 571" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "57 Ill. App. 240", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 856610 ], "opinion_index": 0, "case_paths": [ "/ill-app/57/0240-01" ] }, { "cite": "64 Ill. App. 477", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5173021, 5176221 ], "opinion_index": 0, "case_paths": [ "/ill-app/64/0477-02", "/ill-app/64/0477-01" ] }, { "cite": "27 Fed. Rep. 22", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3768616 ], "opinion_index": 0, "case_paths": [ "/f/27/0022-01" ] }, { "cite": "23 Hun, 932", "category": "reporters:state", "reporter": "Hun,", "opinion_index": 0 }, { "cite": "63 Cal. 445", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2286505 ], "opinion_index": 0, "case_paths": [ "/cal/63/0445-01" ] }, { "cite": "7 N. W. Rep. 174", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "116 Ill. 137", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2886610 ], "opinion_index": 0, "case_paths": [ "/ill/116/0137-01" ] }, { "cite": "101 U. 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": "89 N. Y. 292", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2184463 ], "opinion_index": 0, "case_paths": [ "/ny/89/0292-01" ] }, { "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": "142 Ill. 509", "category": "reporters:state", "reporter": "Ill.", "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" ] } ], "analysis": { "cardinality": 629, "char_count": 11897, "ocr_confidence": 0.532, "pagerank": { "raw": 2.5848509519574474e-07, "percentile": 0.8175561586795215 }, "sha256": "4fa3c8e324773a2f289adcf486c1a9acae03ea0d277847bc1ab2c7da568b7731", "simhash": "1:c8fba07775d8bd04", "word_count": 2063 }, "last_updated": "2023-07-14T20:02:14.451346+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Benjamin Mossler et al. v. Henry Jacobs et al." ], "opinions": [ { "text": "Mr. Justice Waterman\ndelivered the opinion oe the Court.\nThis was an action to restrain the use of the words \u201c Six Big Tailors \u201d in such a way as to infringe upon the rights of the complainants under their trade name of \u201c Six Little Tailors.\u201d\nFlo 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 fropi him, he enables such buyer to tell a lie or to make an untrue representation to somebody else who is the ultimate customer. FTor 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.\n. A 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. Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 40 Ill. App. 430; Same, 142 Ill. 509; Reddaway v. Banhan, House of Lords, opinion filed March 26, 1896; Celluloid Co. v. Cellonite Co., 32 Fed. Rep. 97.\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. Bep. 22, and cases there cited; Morgan\u2019s Sons v. Troxell, 89 N. Y. 292; 42 Am. Rep. 294; Manufacturing Co. v. Trainer, 101 U. S. 51; Ball v. Siegel, 116 Ill. 137; Reed v. Richardson, 45 L. T. (N. S.) 54; Beard v. Turner, 13 Id. 746; Leidesdorf v. Flint, 7 N. W. Rep. 174; Eggers v. Hink, 63 Cal. 445; Morgan\u2019s Sons Co. v. Troxell, 23 Hun, 932; Ewing v. Johnston, L. R. 18, Ch. Div. 612; Apollinaris Co. v. Scherer, 27 Fed. Rep. 22; N. K. Fairbank Co. v. Swift & Co., 64 Ill. App. 477.\nWe regard the words \u201c Six Big Tailors \u201d as so similar to the complainants\u2019 trade name of \u201c Six Little Tailors \u2019\u2019 that it is calculated to deceive the unwary; that confusion is likely to arise therefrom, and thus that it is probable purchasers may be entrapped into buying what they did not. intend; that is, goods of appellants, when intending to buy of complainants.\nWe can hardly think, in view of 'the testimony, that appellants chose the name \u201cSix Big Tailors\u201d without first considering the publicity and value which complainants\u2019 trade name had acquired, and with the thought that by the adoption of a very similar name they could avail themselves of the reputation of a rival. We are the more inclined to this view because of the fact that while the complainants\u2019 firm is composed of six tailors, appellants\u2019 is made up of two only. Appellants appear to have been guilty of unfair competition in business.\nWhile it does not appear that thus far any one has been deceived, we do not think that complainants are obliged to wait until injury has actually occurred; it is sufficient that it is probable customers would be misled.\nThe tendency to abbreviate is such that nearly all firms and corporations are ordinarily spoken of, and their names remembered by, a portion only of their true title.\nComplainants\u2019 name is quite likely to be carried in mind as six tailors.\nEven if appellants\u2019 firm were composed of six \u201c big \u201d. tailors it would have no r-ight to publish such fact for the purpose of the deception of the public and injury to complainants. Van Auken Co. v. Van Auken Steam Specialty Co., 57 Ill. App. 240.\nAppellants insist that some of the advertisements put forth by complainants are manifestly untrue, and that therefore they should be denied relief, invoking the maxim, \u201c he \u25a0who comes into equity must come with clean hands.\u201d It does not appear that the advertisements mentioned had or have any connection with appellants or their business, or the controversy with complainants.\nThe maxim, behind which appellants seek to shield themselves, considered as a general rule controlling the administration of equitable relief in particular controversies, is confined to misconduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the transaction; it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern. When a court of equity is appealed to for relief it will not go outside of the subject-matter of the controversy, and make its interference to depend upon the character and conduct of the moving party, in no way affecting the equitable right which he. asserts against the defendant, or the relief which he demands. Pomeroy\u2019s Equity Jurisprudence, Sec. 399.\nThere is said' to have been a suit upon a promissory note, in which the defendants\u2019 counsel, in addressing the jurors, told them that the plaintiff ought not to recover because he was a horse thief; at this point the court interfered, refusing to permit such argument to be made.\nThe decree of the Circuit Court is affirmed.", "type": "majority", "author": "Mr. Justice Waterman" } ], "attorneys": [ "Charlton & Copeland, attorneys for appellants.", "L. D. Condee and Louis Boisot, Jr., attorneys for appellees." ], "corrections": "", "head_matter": "Benjamin Mossler et al. v. Henry Jacobs et al.\nX. Trade Marks\u2014Infringement of.\u2014Fair competition in business is legitimate, and promotes the public good, but an unfair appropriation of another\u2019s business by using his name or an imitation thereof, calculated to deceive the public, is not permissible and will be enjoined in equity.\n2. Same\u2014Things to be Considered.\u2014A court of equity is not bound to intei fere where ordinary attention will enable a purchaser to discriminate between the trade-marks used on 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 afir for it, as well as the manner in which it is probable it will be ordered, must not be lost sight of.\n3. SAME'\u2014\u201c Six Little Tailors.\u201d\u2014The court regards the words Six Big Tailors \u201d as so similar to the name of \u201c Six Little Tailors \u201d that they are calculated to deceive the unwary; confusion is likely to arise therefrom, and purchasers entrapped into buying wliat they did not intend td\"buy of appellants when intending to buy of appellee.\n4. Maxims in Equity\u2014\u201c Clean Hands.\u201d\u2014The maxim that one must come into equity with clean hands is confined to misconduct 'in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the transaction; it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern.\nInjunction, to restrain the use of a trade name. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1896.\nAffirmed.\nOpinion filed November 5, 1896.\nCharlton & Copeland, attorneys for appellants.\nL. D. Condee and Louis Boisot, Jr., attorneys for appellees.\nThe bill of complaint of the appellees alleges that they have been engaged in the tailoring business in the State of Mew York and advertising the same under the style of \u201c Six Little Tailors,\u201d for the last past fifteen years, and that during a greater portion of said time they have had branch stores in several of the eastern cities, and that as recently as the month of March of this year they opened a branch store under the same name in the city of Chicago, which name of \u201c Six Little Tailors,\u201d they allege, constitutes their trade-mark and trade name.\nThey also allege, among other things, that.the appellants, some time in the month of February of this year, opened a tailoring establishment at Mo. 357-359 State street, under the firm name and style of the \u201c Six Big Tailors,\u201d which style of name appellees allege and claim to be an infringement upon the name adopted by them, to wit, \u201c Six Little Tailors.\u201d\nThe appellants, in their answer to the appellees\u2019 bill of complaint, among other things, allege that the court below had no jurisdiction over the subject-matter involved in this litigation, and deny that the appellees had, or could have, any property right or trade-mark in the words \u201c Six Little Tailors; \u201d they also claim and allege in their said answer that the use of the words \u201c Six Big Tailors,\u201d in no manner infringes upon the words \u201c Six Little Tailors; \u201d and insist that they, the appellants, have the right to use the words \u201c Six Big Tailors \u201d as their trade name.\nThe evidence of complainants shows that in November, 1895, they first took preliminary steps looking toward the establishment of a branch store in Chicago under the style of \u201c Six Little Tailors; \u201d that they advertised in the way of posters, circulars and newspapers prior to their opening of their store in March, 1896, and spent some money in that direction; also shows that prior to that time, and for a period probably of fifteen years, they had two stores in New York City, one in Buffalo, one in Philadelphia, one in Boston, one in Washington, one in Pittsburg and one in Cleveland, all of which were carried on under the style of \u201c Six Little Tailors; \u201d they also testify that they had copyrighted some ten years ago photographs of the six Jacobs brothers, which were placed on their business cards and other advertising under the title of \u201c Six Little Tailors; \u201d and that they used the words \u201c Six Little Tailors,\u201d in every way they possibly could in the way of advertising; that they had received mail orders from various parts of the United States and Europe, and many from the city of Chicago, for suits of clothes. In the deposition of Mr. Jacobs many exhibits are made of the style of advertising in newspapers, posters and also copies of letters and envelopes received from various portions of the country making inquiries about suits, etc. He also testifies that the firm of \u201c Six Little Tailors,\u201d is composed of six Jacobs brothers, who are a little below the medium size in stature, and that therefore the title \u201c Six Little Tailors,\u201d is consistent with the makeup of their firm.\nOn the other hand, the appellant, Benjamin S. Mossier, testifies that appellants opened their place of business as \u201c Six Big Tailors,\u201d at 357-359 State street some time in the month of February, and that there are six brothers in their family, all of whom are above the medium size in stature, and that the two appellants (brothers) had, before the opening of their establishment on State street as \u201cSix Big Tailors,\u201d obtained the consent of the other four brothers to use that name.\nThere is no proof that any person had been misled or deceived by reason of the similarity of the names used by appellants and appellees.\nA decree was entered restraining the defendants, their employes, agents, etc., from using by signs, cards, letterheads, or otherwise, in advertising the business of making and selling clothing, the style and words \u201c Six Big Tailors,\u201d or any other words in imitation of complainants\u2019 said trade name, or resembling the same." }, "file_name": "0571-01", "first_page_order": 567, "last_page_order": 573 }