{ "id": 5242628, "name": "Bernard A. Eckhart et al. v. Consolidated Milling Company", "name_abbreviation": "Eckhart v. Consolidated Milling Co.", "decision_date": "1897-10-31", "docket_number": "", "first_page": "70", "last_page": "75", "citations": [ { "type": "official", "cite": "72 Ill. App. 70" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "2 Sandf. Ch. 587", "category": "reporters:state", "reporter": "Sand. Ch.", "opinion_index": 0 }, { "cite": "5 McLean, 256", "category": "reporters:federal", "reporter": "McLean", "opinion_index": 0 }, { "cite": "2 R. I. 566", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 8521010 ], "opinion_index": 0, "case_paths": [ "/ri/2/0566-01" ] }, { "cite": "73 N. C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8691004 ], "opinion_index": 0, "case_paths": [ "/nc/73/0310-01" ] }, { "cite": "2 Barb. Ch. 103", "category": "reporters:state", "reporter": "Barb. Ch.", "opinion_index": 0 }, { "cite": "4 McLean, 519", "category": "reporters:federal", "reporter": "McLean", "opinion_index": 0 }, { "cite": "2 Sandf. Ch. 597", "category": "reporters:state", "reporter": "Sand. Ch.", "opinion_index": 0 }, { "cite": "25 Barb. 79", "category": "reporters:state", "reporter": "Barb.", "opinion_index": 0 }, { "cite": "44 Mo. 168", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 950301 ], "opinion_index": 0, "case_paths": [ "/mo/44/0168-01" ] }, { "cite": "37 Conn. 278", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 742322 ], "opinion_index": 0, "case_paths": [ "/conn/37/0278-01" ] }, { "cite": "117 Penn. St. 401", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 555834 ], "opinion_index": 0, "case_paths": [ "/pa/117/0401-01" ] } ], "analysis": { "cardinality": 511, "char_count": 11226, "ocr_confidence": 0.561, "pagerank": { "raw": 1.0097937564227417e-07, "percentile": 0.541877344972622 }, "sha256": "198e3aea204f5691df8a3525c0912beb4e482f951625bdde6bd36236df5a9147", "simhash": "1:10caec4ab63194db", "word_count": 1948 }, "last_updated": "2023-07-14T16:22:34.845989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bernard A. Eckhart et al. v. Consolidated Milling Company." ], "opinions": [ { "text": "Mr. Presiding Justice Adams\ndelivered the opinion of the Court.\nThis is an appeal from an order granting a preliminary injunction on bill and answer.\nThe appellee is a manufacturer of and dealer in flour in Minneapolis, in the State of Minnesota, and, since 1891, has manufactured and. sold in the Chicago, Illinois, market, in sacks or other receptacles, flour of three different qualities and named, respectively, \u201cChristian\u2019s Superlative,\u201d \u201c Pettit, Christian & Co. Superlative \u201d and \u201c Ceresota,\u201d the sacks or receptacles in which said flour was contained being marked or branded with those names. The appellant, the Eckhart and Swan Milling Co., a corporation, the stock of which is wholly owned by the appellants, Eckhart and Swan, and which is wholly controlled by them, is a manufacturer of and dealer in flour in Chicago, Illinois. The appellants delivered to the purchasers thereof flour manufactured by them in bags with the marks or brands before mentioned thereon. Appellants, not denying the allegation in appellee\u2019s bill that appellee had the exclusive legal right to use the marks or brands in question in the disposition and sale of flour, explain their, appellants\u2019, use of the bags as follows : They say that their principal customers were bakers, and that sometimes, by agreement with the bakers, appellants made a price on large quantities of appellants\u2019 flour in bulk, the bakers to furnish bags for delivery of the flour, and that among the bags furnished by the bakers, in accordance with such agreement, and in which the flour furnished was delivered, were bags marked or branded with the marks or brands of appellee; that appellants also purchased from bakers second-hand jute bags, among which were bags marked with the brand of appellee, and that they used all such bags for the purpose of delivering to such bakers flour sold to them in bulk by appellants, the object of such use of the bags furnished by the bakers and the second-hand jute bags furnished by appellants being, that appellants might be able to sell their flour at a less price than they would if they furnished new bags. Appellants, in their answer, deny that the bakers or the public were deceived, or that appellee was in any way injured by their use of the bags, or that appellants intended by such use to deceive any one.\nCounsel for appellants contend that in order to warrant a preliminary injunction, it must appear that there was a fraudulent intent of defendant to dispose of his goods as the goods of another, or that the public are, in fact, misled into purchasing the defendant\u2019s goods, believing them to be those of the complainant, or that such a state of facts is shown that the court 'must necessarily infer that the public would be so deceived into purchasing the defendant\u2019s goods. We can not accede to this proposition.\nIt is not necessary to entitle the complainant to relief to show that the defendant acted with a fraudulent intention.\nIn Pratt\u2019s Appeal, 117 Penn. St. 401, the master found in his report that the defendant did not intend to perpetrate an actual fraud in adopting the plaintiff\u2019s mark, and the lower court says in an opinion, \u201c I have carefully examined the testimony upon this point, and can discover no evidence of fraud or bad faith in the use of the trade mark, \u201d and a perpetual injunction was granted. On appeal, the court say: \u201cIf the defendant\u2019s print is an imitation of that of the plaintiff, if it is calculated to deceive and mislead, the motive of defendant in adopting it is not material so far as the law of the case is concerned, however much it might affect it in a moral point of view. The protection which equity extends in such cases is for the benefit of the manufacturer, and to secure to him the fruits of his reputation, skill and industry. The protection of the public is another consideration and one that does not usually enter into such cases, \u201d etc.\nTo the same effect are the following cases: Holmes et al. v. Holmes, etc. Mfg. Co., 37 Conn. 278; Filley v. Fassett et al., 44 Mo. 168.\nIn the last case the court say: \u201cNor is it necessary to show that any one has. in- fact, been deceived, or that the party complained of made the goods. (2 Sandf. S. C. 607; 25 Barb. 79; 23 Eng. L. & E. 53-4; 2 Sandf. Ch. 597.) Nor is it necessary to prove intentional fraud. If the court sees that complainant\u2019s trade-marks are simulated in such a manner as probably to deceive customers or patrons of his trade or business, the piracy should be checked at once by injunction.\u2019 \u201d 4 McLean, 519; 2 Barb. Ch. 103; Blackwell v. Wright, 73 N. C. 310; Davis v. Kendall, 2 R. I. 566; Millington v. Fox, 3 Myl. & Cr. (14 Eng. Ch. R.) 338.\nIn the last case the court says: \u201c I have no reason to believe that there has, in this case, been a fraudulent use of the plaintiffs\u2019 marks. It is positively denied by the answer, and there is no evidence to show that the defendants were even aware of the existence of the plaintiffs as a company manufacturing steel; for although there is no evidence to show that the terms \u2018 Crowley \u2019 and \u2018 Crowley Millington \u2019 were merely technical terms, yet there is sufficient evidence to show that they were very generally used, in conversation at least, as descriptive of particular qualities of steel. In short, it does not appear to me that there was any fraudulent intention in the use of the marks. That circumstance however, does not deprive the plaintiffs of their right to the exclusive use of those names, and therefore I stated that the case is so made out as to entitle the plaintiffs to have the injunction made perpetual.\u201d\nIn Coffeen v. Bruton, 5 McLean, 256, the court says: \u201cTo entitle a complainant to protection against a false representation, it is not essential the article should be inferior in quality, or that the individual should fraudulently represent it, so as to impose upon the public; but if, by representation, it be so assimilated as to be taken in the market for an established manufacture or compound of another, the injured person is entitled to an injunction.\u201d Ib.. 260; see, also, Browne on Trade Marks, 2d Ed., 386; Am. & Eng. Ency. of Law, Vol. 26, p. 444, and cases cited.\nThere is no question of imitation in the present case, because the marks or brands on the bags used by appellants for the delivery to their customers of flour manufactured by them, were the very marks or brands of appellee, and were placed on the bags by appellee.\nTo entitle a complainant to relief by injunction in a case like the present, it is not necessaiy to show that the public are or have been actually deceived. The remedy by injunction is preventive, and it is sufficient to show facts from which the court can deduce the conclusion that the complainant has reasonable ground to fear that the public and the complainant\u2019s customers may be deceived, to the injury of the complainant; that the use made by the defendant of the complainant\u2019s marks is calculated to deceive, and probably will deceive, the public, to the injury of the complainant. It is obvious that after appellants delivered flour to their customers, the bakers, in bags marked and branded as before stated, appellants could not, in all cases, follow the bags, nor could they control the bakers in the disposition of their flour, nor could they have personal knowledge as to how the bakers disposed of it, or as to whether or not they sold it, or any of it, or exposed it for sale in the bags in which it was delivered to them;. or represented to their, the bakers\u2019, customers, that bread sold by them was made of flour of the brands marked on the bags, showing the bags. By delivering to the bakers their flour in bags marked as stated, they put it in the power of the bakers to dispose of the flour as that of appellee. See Coats v. Holbrook, 2 Sandf. Ch. 587.\nThe appellants, in their answer, aver that bakers were their principal customers, indieatitig that they had other customers, but nowhere in their answer do they aver that the bakers were the only customers to whom they delivered flour in bags marked with appellee\u2019s marks or brands. Appellants also say in their answer that the only pecuniary advantage to them of using bags with appellee\u2019s trademarks or brands on them, is that they can sell their flour at a lower price than they could if they should furnish new bags, and it is obvious that this is the only pecuniary benefit which could legitimately accrue to them from the use of the bags. But they can have the same benefit or advantage if, before using the bags, they simply obliterate the trademarks of the appellee. \u2022\nIt is urged by counsel for appellants that the injunction order is too broad, in that it enjoins the appellants not only from using the second-hand bags of the appellee bearing the marks or brands of the appellee, but from at all using the second-hand bags of appellee. The part of the order in respect to which the objection is made is as follows: \u201c The defendants and each of them are hereby enjoined and restrained from using the second-hand bags of the complainant, or the second-hand bags bearing the marks or brands of the complainant, in which to sell or deliver any flour other than that manufactured by complainant,\u201d etc.\nGrammatically construed, the order is too broad, and had appellants\u2019 counsel applied to the lower court for a modification of the order, we have no doubt that the court would have modified it. Appellants had the right to use bags which appellee had disposed of in the market, for the delivery of flour manufactured by appellants, or for any other lawful purpose, after obliterating appellee\u2019s marks or brands thereon.\nThe injunction order should read: \u201c The defendants and each of them be and they are hereby enjoined and restrained from using the second-hand bags bearing the mark or brands of the complainant,\u201d and that part of the order enjoining appellants from using \u201c the second-hand bags of the complainant\u201d should be omitted; and the court is directed to modify the order accordingly.\nThe order, with the exception stated, is affirmed, neither party to recover costs.\nJudge Sears, having heard the cause below, took no part in the decision here.", "type": "majority", "author": "Mr. Presiding Justice Adams" } ], "attorneys": [ "Knight & Brown, attorneys for appellants.", "Manton Maverick, attorney for appellee." ], "corrections": "", "head_matter": "Bernard A. Eckhart et al. v. Consolidated Milling Company.\n1. Trade-Marks\u2014When Use of, Will he Enjoined.\u2014If the court can see that a complainant\u2019s trade-marks are used or imitated in such a manner as probably to deceive customers or patrons, the motives of the , defendant in adopting them are immaterial and the piracy should be checked at once by injunction. It need not appear that there was a fraudulent intent of the defendant to dispose of his goods as the goods of another, that the public are in fact misled into purchasing the defendant\u2019s goods, believing them to be those of the complainant, or that such a state of facts exist that the court must necessarily infer that the public will be deceived into purchasing the defendant\u2019s goods.\nInjunction.\u2014-Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1897. Order modified and affirmed. Opinion filed October 31, 1897.\nKnight & Brown, attorneys for appellants.\nManton Maverick, attorney for appellee." }, "file_name": "0070-01", "first_page_order": 68, "last_page_order": 73 }