Northcutt v. Turney, &C.

• Decision Date: 25 May 1897
• Citation: 101 Ky. 314
• Parties: Northcutt v. Turney, &c.
• Court: Kentucky Court of Appeals

101 Ky. 314

Northcutt v. Turney, &c.

Court of Appeals of Kentucky.

May 25, 1897.

APPEAL FROM CAMPBELL CIRCUIT COURT.

ROOT & ROOT FOR APPELLANT.

NELSON & DESHA FOR APPELLEES.

CHIEF JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT.

Appellees, Dan Turney and others, doing business under the firm name of Turney & Lindsey, and E. C. Hawkins and others, doing business under the firm name of E. C. Hawkins & Co., owners respectively of what are called and known as the Upper and the Lower Blue Lick Springs, in Nicholas county, Ky., brought this action jointly to enjoin appellant, H. B. Northcutt, from using the words "Blue Lick" as a trade mark in connection with his advertisement and sale of water from an artesian well in Campbell county or elsewhere; and, by the judgment appealed from, the temporary injunction granted for that purpose was in terms perpetuated by the lower court. It is substantially alleged and admitted that water from the two springs of appellees have been for a century known, sold, and used throughout the United States and many foreign countries as medicinal water, and also that they and those under whom they claim have, by long use and legal adoption, acquired exclusive right to the use of the words "Blue Lick" as their trade mark. Though Upper and Lower Blue Lick Springs are some distance apart, and belong to two distinct firms, the water from them seems to be composed of the same ingredients, and to possess the same kind and combination of medicinal qualities. And, as the trade mark "Blue Lick Water" has been heretofore appropriately and legally adopted and used by each respective owner without objection of either, they have a common interest in preventing a third party from illegally appropriating and using it, and, consequently, have a right to jointly maintain this action. Appellant states in his answer that he and those who preceded him have been selling and shipping water from said artesion well for a period of at least 16 years; that for about one year of that time the trade mark or brand used in the sale of said water was "The Campbell County Blue Lick Water," and for about 15 years last past the trade mark or brand used by him and the former owners and proprietors in sale of said waters has been "Kentucky Blue Lick Water." And the two defenses based upon this alleged statement of fact are: First, that appellees having knowledge thereof, and acquiescing in such use of the words "blue lick water" by appellant and his...