45 Cal. 467, 2,396, Burke v. Cassin

Docket Nº:2,396
Citation:45 Cal. 467
Opinion Judge:RHODES, Judge
Party Name:DAVID H. BURKE, Executor, and ADELE B. WOLFE, Executrix of the Will of UDOLPHO WOLFE, Deceased, v. FRANCIS CASSIN and P. J. CASSIN; SAME v. S. WERTHEIMBER and L. WATERMAN
Attorney:A Superlative Tonic, Diuretic, Anti-Dyspeptic and Invigorating Cordial. A Superior Tonic, Anti-Dyspeptic, and Invigorating Cordial A Superior Tonic, Anti-Dyspeptic, and Invigorating Cordial. Cowles & Drown, for Appellants. Pringle & Pringle, for Respondents.
Judge Panel:JUDGES: Rhodes, J.
Case Date:January 01, 1873
Court:Supreme Court of California
 
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Page 467

45 Cal. 467

DAVID H. BURKE, Executor, and ADELE B. WOLFE, Executrix of the Will of UDOLPHO WOLFE, Deceased,

v.

FRANCIS CASSIN and P. J. CASSIN; SAME

v.

S. WERTHEIMBER and L. WATERMAN

No. 2,396

Supreme Court of California

January, 1873

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Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.

Udolpho Wolfe brought these suits in his lifetime to restrain the defendants from using his trademark, and for damages. A preliminary injunction was granted on the complaint when the suit was commenced. The defendants answered, and moved, on the answer and affidavits, for a dissolution of the injunction. The motion was granted, and the plaintiffs appealed from the order.

The following are the labels of the parties, Exhibit " B" being the plaintiff's label, and Exhibits " C" and " D" being the labels of the defendants:

[Exhibit " B." ]

Wolfe's AROMATIC SCHIEDAM SCHNAPPS.

A Superlative Tonic, Diuretic, Anti-Dyspeptic and Invigorating Cordial.

This Medicinal Beverage is manufactured by the Proprietor at Schiedam, in Holland, and is warranted not only pure from every injurious property and ingredient, but of the best possible quality. Its extraordinary medicinal properties in Gravel, Gout, Chronic Rheumatism, Incipient Dropsy, Flatulence, Colic, Pains of Stomach and Bowels, whether in adults or infants.

In all ordinary cases of obstruction in the Kidneys, Bladder, and Urinary Organs, & c.

[Exhibit " C." ]

Van Wolf's

AROMATIC SCHIEDAM SCHNAPPS.

A Superior Tonic, Anti-Dyspeptic, and Invigorating Cordial

This Wholesome Beverage is manufactured by the Proprietor at Schiedam, and is warranted pure from every injurious property and ingredient, and of the best possible quality.

Its undoubted efficacy in Gravel, Gout, Chronic Rheumatism, Incipient Dropsy, Flatulence, Colic, Pains of the Stomach and Bowels, whether in adults or infants.

In all ordinary cases of obstruction in the Kidneys, Bladder, and Urinary Organs, & c.

[Exhibit " D." ]

Von Wolf's

Celebrated AROMATIC SCHIEDAM SCHNAPPS.

A Superior Tonic, Anti-Dyspeptic, and Invigorating Cordial.

This Medicinal Beverage is manufactured by the Proprietor at Schiedam, and is warranted pure from any injurious property and ingredient, and of the best possible quality.

Its medicinal efficacy in Gravel, Gout, Chronic Rheumatism, Incipient Dropsy, Flatulency, Colic, Pains of the Stomach and Bowels, whether in adults or infants.

In all ordinary cases of obstruction in the Kidneys, Bladder, and Urinary Organs, & c.

COUNSEL:

Cowles & Drown, for Appellants.

" It was at one time thought that no man could acquire a right to a particular trademark (Blanchard v. Hill, 2 Atk. 284); but as the true interest of manufacturers and commerce were more fully developed and appreciated, the right of property in trademarks was recognized; and the doctrine has been uniform for many years, that the manufacturer or merchant does possess an exclusive property in the trademark adopted and used by him." (Derringer v. Plate , 29 Cal. 295; Upton on Trademarks, 10, 13.)

This property he acquires by the prior adoption of a name, or marks, which will identify his article and distinguish it from others. (2 Hilliard on Torts, 62.)

It is not necessary that we should, and we do not claim that Wolfe invented, as a new creation, any of the words constituting the name of his article. We may admit that all the words of which it is composed existed somewhere at the time he adopted this designation, and even before; but we do claim--and have established it by proof--that he was the first to combine these words into the name " Wolfe's Aromatic Schiedam Schnapps," and the first to apply that name, or any part of it, asthe distinguishing appellation of an article of trade.

The name so adopted by Wolfe, possesses the requisite identifying and distinguishing qualities for a trademark. " The sole purpose being that the marks adopted shall be such as will identify the thing named as that of the person naming it, and distinguish it from all others. This purpose is accomplished if the name be not then in like use, or had not been within a period so recent as would be likely to defeat the primary purpose of distinctive designation." (Upton on Trademarks, p. 47.)

In the exclusive use of such a name and such marks so adopted, plaintiff is entitled to receive fullest protection from a Court of equity; and this upon the two grounds which form the basis of all legal interference in trademark cases:

First--Security to the merchant and manufacturer of the rewards of his skill and enterprise; and,

Second--Protection to the public from imposition and fraud.

A man's trademark, as we have seen, is his property, absolutely and completely. It is also to his goods, what his signature or indorsement is to his bond or note. It lends them credit, and determines their rate in the market. Like thedie at the mint, its impress guarantees genuineness and makes current the wares that bear it. (Motley v. Downman 3 M. & C. 13.)

The labels display the same inverted zeal, to avoid confusion of their preparation with the plaintiff's by the trade and the public. To their care in selecting a name for it, which, with the exception of an obscure prefix, is identical with plaintiff's in every particular, they add an equal diligence in surrounding it with every sign and device used by Wolfe that would be likely to associate the two articles in the mind of the buyer.

The doctrine of trademarks is of but comparatively recent birth. The first announcement of it appears in an unassuming duodecimo called Latch's Cases, p. 188 (Hil. T., 2 Car.), Dean v. Steel; and its brevity is in keeping with the book that contains it.

" 24 Eliz...

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