Albany Perforated Wrapping-Paper Co. v. John Hoberg Co.
| Decision Date | 07 June 1901 |
| Docket Number | 761. |
| Citation | 109 F. 589 |
| Parties | ALBANY PERFORATED WRAPPING-PAPER CO. v. JOHN HOBERG CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George A. Carpenter, for appellant.
L. C Wheeler, for appellee.
Before WOODS and GROSSCUP, Circuit Judges, and SEAMAN, District Judge.
This suit was brought by the Albany Perforated Wrapping-Paper Company to obtain an injunction against the John Hoberg Company forbidding infringement of alleged trade-mark rights. The bill asserts thirteen distinct causes of action separately stated and numbered, each charging the fraudulent use of one of the following words or names alleged to have been adopted and used by the appellant as trade-marks upon its manufactures of toilet paper: 'Sunflower,' 'Beverwyck,' 'club,' 'Clover Leaf,' 'Pacific,' 'Diamond,' 'Hotel,' 'Factory,' 'Standard,' 'Economy,' 'Victor,' 'Cabinet,' and 'A No. 1.' Only the following, however, are not insisted upon 'Sunflower,' 'Beverwyck,' 'Club,' 'Clover Leaf,' 'Hotel,' 'Factory,' 'Economy,', 'Cabinet.' The conclusion of the circuit court-- Judge Jenkins presiding-- was that the various names shown to have been employed were intended to distinguish the different sizes, shapes, and qualities of paper manufactured, and not to indicate origin (102 F. 157) and accordingly the bill was dismissed for want of equity. That conclusion, in the opinion of this court, was justified by the evidence. Practically conceding that the use of the words as trade-marks strictly was not established, counsel for the appellant insist that a case was made out of fraudulent and unfair competition in trade. The bill, however, it is evident, was not drawn, and the trial below was not conducted, upon that theory. There is no hint of it in the opinion of the court, and, if insisted upon, it must have been rejected for want of adequate proof. When a trade-mark proper has been infringed, the fraudulent intent will be inferred, but that intent must be present in order to make an actionable case of unfair competition. 'The deceitful representation or perfidious dealing must be made out or be clearly inferable from the circumstances. ' Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U.S. 537, 11 Sup.Ct. 396, 34 L.Ed. 997. The evidence in this record does not show 'an unfair and fraudulent competition against the business of the plaintiff, conducted with the intent, on the part of the defendant, to avail itself of the reputation of the plaintiff to palm off its goods as plaintiff's,' but rather the contrary, since, under the circumstances, the defendant had reason to believe that the words or names in question were in common use by manufacturers, each for the purpose of designating a particular size, shape, or quality of paper.
While it has been found practicable to affirm the ruling...
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...intended to be urged." E. R. Squibb & Sons v. Mallinckrodt Chemical Works (C.C.A.8) 69 F.(2d) 685, 687; Albany Perforated Wrapping-Paper Co. v. John Hoberg Co. (C.C.A.7) 109 F. 589; Sutherland v. Brace et al. (C.C.A.7) 71 F. 469; A., T. & S. F. R. Co. v. Mulligan (C.C.A.7) 67 F. For the sam......
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