7 F. 720 (D.N.J. 1881), Sawyer v. Kellogg

Citation:7 F. 720
Party Name:SAWYER v. KELLOGG.
Case Date:June 01, 1881
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 720

7 F. 720 (D.N.J. 1881)

SAWYER

v.

KELLOGG.

United States Circuit Court, D. New Jersey.

June 1, 1881

Page 721

Rowland Cox, for complainant.

George Putnam Smith, for defendant.

Before BRADLEY and NIXON, JJ.

BRADLEY, Circuit Justice.

This case, with its special circumstances, seems to us to be a very clear one. The complainant's label, which he alleges that the defendant has wrongfully imitated, had been in use substantially in the same form for a dozen or more years prior to the bringing of the suit. It consists of a blue wrapper, pasted around a small bottle holding the bluing, and containing, in separate compartments, various inscriptions in letters of silver bronze. The first compartment contains the general designation of the article, in the words, 'Sawyer's Crystal Blue and Safety Box. ' The other compartments are in finer print, and contain commendations of the quality of the article, directions for use, and the name of the party by whom it was prepared.

The label complained of, and admitted to be prepared and used by the defendant, is of the same size, color, and type, and of the same general appearance, as that of the complainant, being divided into compartments corresponding with those in his label. The inscriptions, although not identical, appear very like. The general designations is in these words: 'Sawin's Soluble Blue and Pepper Box. ' Placing the two labels side by side it is easy to distinguish them. But ordinary persons, in the habit of buying the complainant's bottles, would be very easily deceived into buying the defendant's for them, the general appearance being so similar in every respect. That the defendant's label is a designed imitation of the complainant's scarcely admits of a doubt. Such perfect similarity could hardly have been the result of chance. We do not mean to say that it would be a justification if it were accidental. But it is apparent that it was designed. Sawin is not the defendant's name; why, then, did he use Sawin's name and not his own? It was evidently done for the purpose of making a closer imitation of Sawyer's label. The defendant, it is true, alleges that he

Page 722

does not put up the bluing for himself, but for a firm by the name of Barron & Co., who directed him to adopt the label in question. But this is no excuse for him unless Barron & Co. were entitled to use the label. The defendant attempts to...

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