32 F. 205 (E.D.Tex. 1887), Moxie Nerve Food Co. v. Baumbach

Citation:32 F. 205
Party Name:MOXIE NERVE FOOD CO. v. BAUMBACH and others.
Case Date:July 11, 1887
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 205

32 F. 205 (E.D.Tex. 1887)

MOXIE NERVE FOOD CO.

v.

BAUMBACH and others.

United States Circuit Court, E.D. Texas.

July 11, 1887

Scott & Levi, opposed.

SABIN, J.

In this case it would appear that Augustin Thompson, M.D., early in 1885, manufactured a beverage called by him 'Moxie Nerve Food,' and, deeming it of great value commercially, filed with the United States commissioner of patents an application for a trade-mark therefor on the sixteenth day of July, 1885, and which was afterwards registered

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in the patent-office, September 8, 1885, and from which it appears that such trade-mark had only been in use since April 1, 1885; the term 'Moxie,' being the trade-mark word, while the label included a picture and other descriptive words. Thompson sold this trade-mark to complainant in July,1885, and complainant has used the same as its trade-mark and label ever since. It also used the champagne bottle wrapped in a peculiar light-brown paper, with the words 'Moxie Nerve Food' printed prominently thereon, as stated in the bill of complaint. It was in the full and undisputed use of its label, champagne bottle for its package, for quite a time, and the light brown wrapper, with words 'Double Extract' or 'Single Extract,' as the case might be, of 'Moxie Nerve Food,' in prominent print thereon. It became quite popular and extensively used as an article of commerce under the head or class of 'Beverages,' and was generally known as 'Moxie' or 'Moxie Nerve Food.' Its demand by the public was difficult to supply continuously in the same class of bottle; and it so happens that Dr. Thompson, the general manager of plaintiff, while he had used the common champagne bottle in making up his own and the complainant's packages, thereafter, having intended to put the same up in a different kind of bottle, with the words 'Moxie Nerve Food' blown therein, had actually used such bottles in the business of plaintiff; but, being cautioned as to its effect upon plaintiff's trade-mark package, he desisted from so doing, and has since continued using solely the champagne bottle. The trade-mark asserts 'that the Moxie nerve food contains not a drop of medicine, poison, stimulant, or alcohol, but is a simple sugar-cane like plant, grown near the equator and farther south; was lately accidentally discovered by Lieut. Moxie; and has proved itself to be the only harmless and effective nerve food known that can recover brain and nerve exhaustion,' etc.

Shortly after the Moxie Nerve-Food Company got under full headway, quite a number of persons or nerve-food companies sprang up, claiming to manufacture or sell nerve-food beverages, and all manufacturing a beverage of the same or very similar taste, flavor, and odor to that of complainant; and as early as the fall of 1886 the defendant Baumbach and the Star Bottling Works, a corporation mainly belonging to him, were found manufacturing a preparation thus similar to complainants, and similarly put up in a champagne bottle, with the label and wrapper closely enough resembling the label or trade-mark and wrapper of plaintiff to deceive the ordinary public, and calling the same 'Standard Nerve Good,' and having the words, 'Genuine. Beach and Claridge,' written across the label. Such is the imitation of the Moxie nerve-food label, package, and wrapper that it is and was well calculated to deceive the general public, and impose upon the unwary, and derive advantage from the prestige of the Moxie nerve food, and such undoubtedly was the design in framing its label, and adopting the bottle and words 'Nerve Food' thereon, and theretofore used by complainants in the manufacture and sale of its beverage. The words 'Nerve Food' had never before been used upon beverages. It had been used very limitedly, indeed, upon some medicines put up in small bottles, and not widely known;

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but still as a medicine the words 'Nerve Food' had been used. The fluid or beverage, or preparation therefor, offered by defendants, is not enjoined. It is not objected to by complainant that defendants may put up a preparation like its own, or otherwise. But complainant does object, however, and desires to have enjoined, the putting up a fluid preparation as a beverage resembling its own in flavor, taste, and color, in packages, wrappers, and labels or trade-marks like its own, or in such similitude as to lead the public to believe that they were buying the 'Moxie Nerve Food,' when in truth and in fact they were buying a preparation known as 'Standard Nerve Food,' and the contention is whether defendants have such right.

The complainant applied for and obtained an injunction, February 17, 1887, which was thereafter continued by the court, wherein it was ordered, adjudged, and decreed that the defendants, and each of them-- that is to say, August Baumbach and the Star Bottling Works, a corporation under the laws of Texas,--their and each of their servants, agents, attorneys, and employes, and all others confederating with them be, and the same are and each of them is hereby, restrained and enjoined from in any manner simulating the trade-mark or label of complainant specified as Exhibit A in its bill of complaint, or using the same, and particularly the one specified in said bill of complainant as Exhibit B, upon any bottle or package of fluid manufactured resembling in taste, flavor, or appearance the article of Moxie nerve food manufactured and sold by complainant under said trade-mark or label marked Exhibit A, as aforesaid; and likewise from putting upon the market for sale, or using for making into packages or otherwise bottles, one or more of the style of champagne bottles in use by complainant, when such similar bottles contain a fluid resembling that manufactured and sold by complainant as Moxie nerve food in taste, flavor, or appearance; and likewise from...

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