Anargyros & Co. v. Anargyros

• Decision Date: 01 February 1909
• Docket Number: 1,587.
• Citation: 167 F. 753
• Parties: ANARGYROS & CO. v. ANARGYROS. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

167 F. 753

ANARGYROS & CO. v. ANARGYROS. ^[1]

No. 1,587.

United States Court of Appeals, Ninth Circuit.

February 1, 1909

This appeal is from an order granting a preliminary injunction.

The bill alleges, among other things, that prior to March 30 1900, and for more than 10 years next preceding that date one S. Anargyros was engaged in the business of manufacturing and selling cigarettes in the city of New York; that all of the cigarettes so manufactured and sold by the said S Anargyros bore his name, and were packed and inclosed in packages or boxes which were marked with the name 'S Anargyros'; that the said S. Anargyros continued to carry on said business, which was large and lucrative, in the said city, until the month of March, 1900, when he conveyed his entire interest in the business, including the good will of the same, and the trade-name or trade-mark 'S. Anargyros,' and the exclusive right to the use of the same, to the complainant, and retired therefrom, whereupon the complainant became the legal and equitable owner thereof; that prior and up to the time of such conveyance those cigarettes had become known generally throughout the markets of the world as 'Anargyros' cigarettes, and that the name S. Anargyros had become a trade-mark or sign of quality of the said cigarettes so marked, and to indicate the ownership and origin thereof as a product of S. Anargyros, manufacturer, and to distinguish the said cigarettes from those of other manufacturers, and had become and was a valuable and integral part of the boxes, packages, and trade-marks in and under which the said cigarettes had been sold by the said S. Anargyros.

The bill further alleges 'that, at or immediately before the time of the completion of the purchase of said business of S. Anargyros by your orator, as aforesaid, the incorporators of your orator conceived that the name 'S. Anargyros' was a valuable and integral part of the packages and boxes in which, and of the trade labels and trade-marks under which, said cigarettes had been sold, and on that account caused the organization of said corporation under the name 'S. Anargyros' as aforesaid; that ever since the said 30th day of March, A.D. 1900, your orator has conducted and carried on said business so acquired from the said S. Anargyros, in said city of New York, state of New York, and has been, and still is, the sole owner and proprietor thereof, and has large capital invested in said business; that during all of such time your orator, as successor of S. Anargyros, has made it an especial business to manufacture and sell, and during all of said time has manufactured and sold, and is now manufacturing and selling, cigarettes to be distributed and sold, and which are distributed and sold, in most, if not all, of the markets throughout the world, under the trade-name or trade-mark 'S. Anargyros';' that the cigarettes so manufactured and sold under said trade-name or trade-mark by the said S. Anargyros and the complainant are of a superior quality, and have achieved a great and valuable reputation among the cigarette trade and purchasers of cigarettes throughout the world, which is of great value to the complainant, and will continue to be so, if the alleged wrongful imitation, simulation, and infringement of the same by the defendant be restrained and enjoined; that the cigarettes so manufactured and sold by the complainant are marked, packed, and sold under several different labels to distinguish them from others, which several brands are designated by the respective and distinctive names 'Egyptian Deities,' 'Mogul,' 'Murad,' 'Turkish Trophies,' and 'Windsor Castle,' in addition to the common trade-name or trade-mark 'S. Anargyros,' which said last-mentioned trade-name or trade-mark is plainly printed upon each and every cigarette put up and sold under the respective brands, and upon each and every package or box containing the same, and which said respective brands are set out in the bill as follows:

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The bill further alleges that while the complainant has had the sole and exclusive right to the use of said name 'S. Anargyros' as a trade-name or trade-mark, the defendant has manufactured and sold, and is now manufacturing and selling, large quantities of cigarettes, upon each of which, and upon the packages and boxes containing the same, it has placed, and is now placing, in plain and conspicuous letters, the name 'Anargyros & Co.' in imitation of the name 'S. Anargyros,' as it has been heretofore used by the complainant and the said S. Anargyros, as already stated; that the defendant has put up, and is putting up and packing, the cigarettes so manufactured and marked by the defendant as aforesaid, in boxes and packages in shape and size similar to the boxes and packages in which the cigarettes manufactured by the complainant are put up and packed, and that the defendant has used, and is now using, upon the packages and boxes in which its cigarettes have been and are being put up and packed, trade-marks and trade labels simulating, imitating, and infringing the aforesaid labels and trade-marks of the complainant; that upon the packages and boxes containing cigarettes of a brand described and designated by the defendant as 'Egyptian Nemesis,' in simulation and imitation of the complainant's brand 'Egyptian Deities,' the defendant has caused to be placed the following trade label or trade-mark:

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That upon the packages and boxes containing cigarettes of a brand described and designated by the defendant as 'Turkish Pets,' in simulation and imitation of the complainant's brand 'Turkish Trophies,' the defendant has caused to be placed the following trade label or trade-mark:

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That the cigarettes so manufactured and sold by the defendant, and having said name 'Anargyros & Co.' upon them as aforesaid, were and are of a quality very much inferior to those manufactured and sold by the complainant, by all of which acts the complainant alleges it has been greatly damaged.

The bill was verified by the president of the complainant corporation, in which verification it is stated that he knows the contents thereof, and 'that the same is true of his own knowledge, except as to matters therein stated on information and belief, and that as to those matters he believes the same to be true.'

Accompanying and in support of the bill, the complainant filed the affidavits of George W. Whitaker, E. C. Hull, George W. Little, W. R. Elliott, Jr., R. A. Laherty, Robert Dumphy, and William Quincy.

Whitaker in his affidavit states that he is the vice president of the John Bollman Company, a corporation, which is the distributor of the cigarettes manufactured by the complainant, within the states of California, Oregon, Washington, Arizona, the western portions of Idaho and Nevada, and the Hawaiian Islands; that there is no officer of the complainant residing in the state of California, and that the affiant has been authorized by the complainant to employ counsel to commence suit, and to take any and all steps necessary to the successful prosecution thereof; that, acting under such authority and for that purpose, he procured the affidavits of Hull, Little, Elliott, Laherty, Dumphy, and Quincy, in support of the allegations contained in the bill, and that no officer of the complainant has, nor has the affiant, any personal knowledge of the facts set forth in those affidavits, each of which affidavits he caused to be filed with the bill in support thereof, and of the complainant's application for a restraining order and preliminary injunction.

The affidavit of Hull is to the effect that he is a sales agent of the John Bollman Company, a corporation engaged in the manufacture and sale of cigarettes, and that on or about the 6th day of December, 1907, he called at the cigar stand of one Harris, in San Francisco, and said to Harris, 'I see you have a new cigarette,' pointing to a lot of 'Turkish Pets' cigarettes upon one of the shelves of his stand, which cigarettes are manufactured and sold by the defendant, and that in reply to affiant's remark Harris stated: 'Yes; it is an Anargyros cigarette, made by the same people that make 'Turkish Trophies."

The affidavit of Little is to the effect that on the 19th day of November, 1907, he called at the cigar stand of one Morris, in the city of Oakland, and asked the attendant for a 'package of Anargyros 25-cent cigarettes,' and that the said attendant thereupon handed to him a package of 'Egyptian Nemesis' cigarettes.

The affidavit of Elliott is to the effect that he was engaged in the retail cigar and cigarette business in San Francisco, and received on consignment a lot of 'Turkish Pets' cigarettes from the defendant, and that the defendant's salesman who took the affiant's order therefor informed him that Anargyros, of the defendant company, was formerly a partner of S. Anargyros, and had formerly made 'Turkish Trophies' cigarettes; that affiant ordered said cigarettes of the defendant relying on that statement, and upon the fact that the name of the manufacturer of said 'Turkish Pets' was similar to that of the manufacturers of 'Turkish Trophies'; that the price of 'Turkish Pets' cigarettes is much lower than that of 'Turkish Trophies,' and that affiant intends to sell said 'Turkish Pets' in place of and for 'Turkish Trophies' cigarettes.

The affidavit of Laherty is to the effect that on the 6th day of December, 1907, he called at the cigar stores of Hermann Keiser, W. R. Elliott, and of Chambers & Wieman, in the city of San Francisco, and laid upon the counter of each of those places a 10-cent piece, at the same time asking the respective attendants in charge for a package of ...