10 A. 81 (Md. 1887), Parlett v. Guggenhiemer

Citation:10 A. 81, 67 Md. 542
Opinion Judge:STONE, J.
Party Name:PARLETT AND ANOTHER v. GUGGENHIEMER AND OTHERS.
Attorney:John K. Cowen and E. J. D. Cross, for appellants. Wm. P. Whyte and Wm. H. Browne, for appellees.
Case Date:June 23, 1887
Court:Court of Appeals of Maryland
 
FREE EXCERPT

Page 81

10 A. 81 (Md. 1887)

67 Md. 542

PARLETT AND ANOTHER

v.

GUGGENHIEMER AND OTHERS.

Court of Appeals of Maryland

June 23, 1887

Appeal from circuit court, Baltimore city.

John K. Cowen and E. J. D. Cross, for appellants.

Wm. P. Whyte and Wm. H. Browne, for appellees.

STONE, J.

The learned judge of the circuit court for Baltimore city, in the opening of his very lucid opinion in this case, says: "From an inspection of the exhibits filed in this case, and an examination of the testimony, I have no doubt that the trade-mark adopted by the defendants is a simulation of that of the plaintiff, calculated to deceive the ordinary retail purchaser; and I think the testimony further shows that the simulation was designed for the

Page 82

purpose of enabling the defendants to put their goods upon the market upon the reputation previously acquired by goods of the plaintiff." To the views so far expressed by him we fully assent; but he goes on to say that while that is so, the plaintiffs are not entitled to the relief they ask, because according to the evidence one Lorin Palmer, of Chicago, long before the plaintiffs used the trade-mark, had adopted and used it, and therefore they could not have an injunction against others when they themselves were liable to one at the suit of Palmer. From these latter views we are compelled to dissent. One defense set up by the defendants is in fact a quasi admission that they were simulating the trade-mark of the plaintiffs, but that the plaintiffs were simulating the trade-mark of Palmer, and therefore could not complain of them. It is a plea of confession and avoidance, but it still would be a good plea if sustained by the proof; for if the evidence does show that the plaintiffs were committing, by the use of their trade-mark, a fraud on Palmer, they are in no condition to complain of the defendants' fraud on them.

The plaintiffs are manufacturers of plug twist chewing tobacco, and their trade-mark consists of the words "Golden Crown," marked on the boxes in which the tobacco is packed, and in addition four tin tags of a particular size, shape, lettering, and position on each bar of the tobacco, and on each tag also the words "Golden Crown." These tin tags form a very important part of the plaintiffs' trade-mark. The tin-tag device was adopted to prevent frauds on the retail purchaser, who could then be sure that he obtained what he wanted, and of which he could not be sure as long as the trade-mark was only on the top of the box in which the tobacco was packed. The trade-mark of Palmer, which the plaintiffs are charged with using, are the words "Golden Crown," but he used no tin tags or anything on the bars of tobacco, but only used his trade-mark on the packages of manufactured tobacco, and on boxes of cigars. It is also shown that Palmer had used this trade-mark from 1858, long before the adoption by the plaintiffs of their trade-mark, and it is further shown that the plaintiffs were in entire ignorance of its use by Palmer up to the bringing of this suit. It also appears, from the agreement in this case, that this Lorin Palmer brought suit about 1869 against one Harris, of Philadelphia, claiming that Harris was simulating his trade-mark, and asking a court of equity to restrain him. Harris in his answer admitted the imitation, but based his defense upon the fact that Palmer had no standing in a court of equity to get the relief he asked, because he (Palmer) had marked on his cigar boxes that the cigars were made in Havana, when in fact they were not made there, but made in New York; and this Palmer admitted, and the supreme court of...

To continue reading

FREE SIGN UP