Vacuum Oil Co. v. Climax Refining Co.

• Decision Date: 03 February 1903
• Docket Number: 1,115.
• Citation: 120 F. 254
• Parties: VACUUM OIL CO. v. CLIMAX REFINING CO.
• Court: U.S. Court of Appeals — Sixth Circuit

120 F. 254

VACUUM OIL CO. v. CLIMAX REFINING CO.

No. 1,115.

United States Court of Appeals, Sixth Circuit.

February 3, 1903

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

Oils adapted for use in the cylinder of an engine as a lubricator must be capable of enduring a high degree of heat without burning or injury to their lubricating qualities. As lubricating oils having as a base petroleum came into use in competition with animal fat oils, so long exclusively used it became important to assure the consumers of the safety of the new lubricator at a high degree of heat.

It was found that a high grade of such oil ought to be able to endure 600 deg. of heat without taking fire from a flame brought into close contact. This led to the general adoption of 600 deg. as a proper test for a high grade of cylinder oil, and packages of oil which would stand that test, or higher, were accordingly branded with the figures '600,' sometimes with and sometimes without the degree sign; the figures being understood to indicate the fire test of the oil, whether the degree sign was added or not. The weight of the evidence shows that the figures '600,' in connection with the sale of cylinder oil had come to have this significance to the trade, and to makers of such oils, long before the complainant adopted '600' as a part of its private trade-mark. The evidence also shows that in the oil business it was also customary to indicate other qualities or grades or special uses of cylinder oil by one or the other of the letters of the alphabet, used in association with the figures showing the fire test. Thus the symbol '600V,' which the defendants now use, was a not uncommon description stenciled on the head of barrels containing cylinder oil; the 'V' being an abbreviation of valve. There is satisfactory evidence that these methods of describing the oil included many other letters of the alphabet, including the letter 'W,' associated with '600.' This method of describing the test and grade or use of cylinder oil began before complainants appropriated '600W' as its exclusive brand, and has continued to find favor among some of the manufacturers and dealers ever since. Complainant claims to have adopted this symbol as a trade-mark indicating origin and ownership as far back as 1879. It is not clear that this early use of these well-understood methods of describing the quality or grade of the oil made or sold by it was not descriptive, as in the case of others. Not until 1886 did it undertake to register '600W' as a private trade-mark. But if we assume that its first use of '600W' was as a symbol indicating origin of manufacture, and not quality or grade, it is still confronted with the fact that, when it attempted to appropriate '600W' as its exclusive trade-mark, its competitors and rivals were using '600...