175 F. 167 (S.D.N.Y. 1910), Edward & John Burke, Limited, v. Bishop

Citation:175 F. 167
Party Name:EDWARD & JOHN BURKE, Limited, v. BISHOP.
Case Date:January 14, 1910
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 167

175 F. 167 (S.D.N.Y. 1910)

EDWARD & JOHN BURKE, Limited,

v.

BISHOP.

United States Circuit Court, S.D. New York.

January 14, 1910

Page 168

[Copyrighted Material Omitted]

Page 169

Edmund Wetmore and Oscar W. Jeffery, for complainant.

Parker & Aaron, for defendant.

RAY, District Judge.

The complainant is, and at the time of the commencement of this suit was, a corporation organized and doing business under the laws of the Kingdom of Great Britain and Ireland, and for many years has had, and now has, a place of business in the city of New York, U.S.A. Its business is that of export bottlers of stout, ales, whiskies, and other goods. It is the successor in business of the firm of Edward & John Burke, composed of Edward Burke, John Burke, and John Gardner Nutting. In 1870 that firm was the sole export bottlers for the United States of the stout brewed by Arthur Guinness, Son & Co., Limited, and they continued to be such sole export bottlers of such stout until 1874 or 1875. For about 50 years the complainant and its predecessor have exported to the United States this Guinness' Stout in bottles bearing labels and capsules in the following style, dress, and collocation (with some insignificant alteration of detail), viz.: The bottle itself is of the shape and size of the ordinary lager beer or beer bottle. On one side is an oval label with the picture of a small harp thereon (trade-mark), such label bearing the words, in large print, 'Guinness's Extra Stout, James Gate, Dublin,' and, in small type, the words, 'Printed and issued by us as our trade-mark and label, Arth Guinness, Son & Co.,' a number printed in large red figures, and also, in small type, the words 'Bottled by E. & J. Burke, Limited, Dublin, Ireland, who sell no other brown stout in bottles. ' Below this, and attached horizontally, is another oval label of the same color bearing the words:

'Guinness' Extra Foreign Stout, Dublin. We the undersigned guarantee and hold ourselves responsible that we bottle none other than Guinness's Finest Foreign Stout which we have continuously done for past half century. Edward & John Burke, Limited. Established in Dublin in 1849.'

On the opposite side is another oval label bearing the legend in large print:

'E. & J. Burke, Guinness' Foreign Stout, Brewed in Ireland. Caution-- None genuine without our patent capsule bearing our trade mark. Edward and John Burke, Limited. Dublin.'

The caution is in smaller type. Above the caution is the picture of a cat between the words, 'trade' and 'mark,' and underneath the cat is the monogram, 'E. & J. B.' All these labels are of a buff or yellowish color, except the central part of the third one has some check marks made by red lines. The capsule, covering the nose of the bottle and extending downward something more than an inch, is red, except the tip or very top of the capsule, which is yellow, and both side and top have the said trade-mark (cat) and monogram, and letters 'E. & J. Burke, Dublin,' thereon. That which first catches the eye or attracts attention is the red capsule. The next prominent feature is the first and second label mentioned and their color and arrangement with reference to each other; the first being perpendicular to the other. If one stops to read, the third label tells who bottled the stout. All the labels tell that the contents are Guinness' Stout.

Page 170

The defendant, Isaac C. Bishop, is a citizen of the United States, residing in the Southern district of the state of New York and doing business in the city of New York. He is a dealer in stout, ale, and other beverages, but not a bottler or an importer. Prior to the commencement of this suit, April 1, 1904, he sold in his said business bottled stout, contained in bottles of the same size and shape as those of complainant. This stout was manufactured by Arthur Guinness, Son & Co. of Dublin, Ireland, at that place, and was bottled by T. B. Hall & Co. of Liverpool, England, and imported to the United States by William A. Ross doing business in the city of New York under the name and style of William A. Ross & Bro. by whom it was sold to the defendant. This stout was put up and sold in bottles of the same size and shape as Burke's, dressed and labeled as follows, viz.: The first label in all respects, including size, shape, and color, is the same as the first-mentioned label on the complainant's bottles, substituting the words, 'T. B. Hall & Co., 79 to 83 Norfolk street, Liverpool,' for the words, 'E. & J. Burke, Limited, Dublin. ' The second label, of the same size, shape, and color of complainant's and attached at the same place and in the same way, reads:

'Auk's Head Bottling. Guinness's Extra Foreign Export Stout, Brewed by Arthur Guinness, Son & Co., Ltd., James's Gate, Dublin, and guaranteed genuine by W. A. ross & Brother, Belfast & Liverpool, who sell no other stout.'

On the opposite side of the bottle is a third label of the same shape, size, and general color of complainant's third label omitting check marks, bearing the words, 'Ross's Brand,' with an auk's head between the word 'Ross's' and the word 'Brand.' Beneath the auk's head is printed:

'Great Auk's Head, Regd. Trade Mark. W. A. Ross & Brother, Belfast, Liverpool & London. Guinness's Extra Foreign Stout, brewed by Arthur Guinness, Son & Co., Ltd...

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