Alff v. Radam

• Decision Date: 03 June 1890
• Citation: 14 S.W. 164
• Parties: ALFF <I>et al.</I> v. RADAM.
• Court: Texas Supreme Court

14 S.W. 164

ALFF et al. v. RADAM.

Supreme Court of Texas.

June 3, 1890.

Commissioners' decision. Appeal from district court, Travis county.

Walton, Hill & Walton, for appellants. Dowell & Posey, for appellee.

ACKER, P. J.

William Radam brought this suit against Chas. Alff & Co., a firm composed of Charles Alff and Joe K. Heim, and against the members of the firm individually, to recover damages for alleged infringement of a trade-mark, and for injunction restraining the defendants from using the alleged infringing trade-mark. The trial by jury resulted in a verdict for plaintiff for one cent damages, and judgment was rendered perpetuating the injunction, from which this appeal is prosecuted. The alleged trade-mark of plaintiff consisted of the words "microbe killer" used in conjunction with a device, symbol, or illustration representing a man in the attitude of striking a human skeleton with a bludgeon. The words and illustration are printed on a white paper label eight and one-half by five and one-half inches in dimensions, with a red border around it; the illustration being printed in red ink, while the name and directions for using are printed in black ink. The alleged trade-mark of the defendants consisted of the words "microbe destroyer," printed on a yellow paper label four and one-half by four and three-fourths inches in dimensions, with a black border around it, but no device or symbol. Appellants contend that the words "microbe killer" are words of definite meaning, in common use, descriptive of the quality, ingredients, or characteristics of the remedy put up and sold under that name, "and therefore not susceptible of being erected into a trademark."

What constitutes a trade-mark is a question of law for the court. Whether a trade-mark has been so constituted, and, if so constituted, whether there has been an infringement of it, are ordinarily questions of fact for the jury. In the case of Manufacturing Co. v. Trainer, 101 U. S. 54, it is said: "The limitations upon the use of devices as trade-marks are well defined. The object of the trade-mark is to indicate, either by its own meaning or by association, the origin or ownership of the article to which it is applied. If it did not, it would serve no useful purpose either to the manufacturer or to the public. It would afford no protection to either against the sale of a spurious, in place of the genuine, article. This object of the trade-mark, and the consequent limitations upon its use, are stated with great clearness in the case of Canal Co. v. Clark, 13 Wall. 311. There the court said, speaking through Mr. Justice STRONG, that `no one can claim protection for the exclusive use of a trade-mark or trade-name which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. If he could, the public would be injured, rather than protected, for competition would be destroyed. Nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or its characteristics, be employed as a trade-mark, and the exclusive use of it be entitled to legal protection.' And a citation is made from the opinion of the superior court of the city of New York in the case of the present complainant against Spear, reported in 2 Sandf. 599, that `the owner of an original trade-mark had an...