Avery v. Meikle
| Decision Date | 27 March 1883 |
| Citation | 4 Ky.L.Rptr. 759,81 Ky. 73 |
| Parties | Avery & Sons v. Meikle & Co. |
| Court | Kentucky Court of Appeals |
1. A trade-mark is a sign or symbol primarily confined to the indication of the origin or ownership of the goods to which it may be attached.
2. It may be composed of any name, device, or combination which will meet the purpose of a trade-mark, and which no other person can adopt or use with equal truth.
3. There is no abstract right in a trade-mark. It is property only when appropriated and used to indicate the origin and ownership of goods.
4. When it is shown that a trade-mark has been infringed, and that injurious consequences are or may be the result of the infringement, the owner is entitled to relief.
5. The chancellor proceeds upon the principle of protecting property alone. The protection of the public alone is not sufficient ground for the jurisdiction. The property consists in the exclusive right of the owner of a trade-mark to be protected in the exercise of his ownership, and the exclusive right to its use.
6. The confusion which prevails in the argument against the jurisdiction in this case results from assuming that in all cases the plaintiff must make out a legal title.
7. If a party, with bad motive, uses his rights and property in an unlawful manner, and damage results, it is damage with injury, and relief will be given.
8. Appellees have not used any letters, figures, or words that belong to appellants' trade-mark proper; yet, by the exact imitation of the plow in every perceivable point exposed to an ordinary observer, and the use of the same coloring and staining, the same relative position of the letters and figures as employed by appellants, they have caused their plows to be taken for and purchased as those of appellants.
9. The case shows an intentional infringement, and not only probable injury, but facts from which the law presumes injury as a necessary consequence
MAPPEAL FROM LOUISVILLE CHANCERY COURT.
W. O. & J. L. DODD, JOHN MASON BROWN, P. B. MUIR, AND JOHN MARSHALL FOR APPELLANTS.
1. B F. Avery, or his successor, B. F. Avery & Sons, first adopted and used as distinguishing marks on plows the word " Pony," the letters " A O," " B O," and " C O," and the numerals " 1/2," " 1," " 2," " 3," and " 8."
2. Plows so made and branded became known to the public as Avery's plows. These brands became a part of the trade-mark or trade indicia of Avery, and he is entitled to protection in their use upon like principles as where the trade-mark itself is taken or dismembered.
3. The appellees coveted the trade and reputation of Avery, and abandoned their brands and adopted the same brands as Avery and on plows made in almost exact imitation thereof.
4. These imitation plows, when sold to jobbers, did not have Meikle's name on them, but the names of the jobbers were stencilled thereon.
5. Plows so made and branded, having the exact similitude of Avery's plows, could readily be sold to ordinary purchasers as and for Avery's plows, and were so sold.
6. If the plows so made and branded are likely or liable to deceive ordinary purchasers, or even the heedless and unwary, equity will enjoin such use. (Glenny v. Smith, 11 Jurist 964; Coats v. Holbrook, 2 Ind. Ch. R., 586; Croft v. Day, 7 Beav., 84; Swift v. Day, 28 How. P., 206; Gorham Co. v. White, 14 Wall., 527; Singer v. Wilson, 24 Eng. R., 284; Lawrence Manufacturing Co. v. Lowell Hosiery Mills, 129 Mass 325; Coleman v. Crump, 70 N.Y. 578; Walton v. Crowley, 3 Blatchf., 447; Franks v. Weaver, 10 Beav., 297.)
7. It is not necessary that the imitator should copy the name of the original maker. Relief will be granted if the special indicia which have become known as denoting A's goods are copied or simulated on like goods in such a way as to mislead purchasers. (Amoskeag Manufacturing Co. v. Spear, 2 Sand. S. C., 599; Gillott v. Esterbrook, 47 Barb., 455; Boardman v. Meriden Britannia Co., 35 Conn. 402.)
8. But conceding that none of the names, letters, or numerals are trade-marks, yet the relief prayed should be granted, because their use by appellees is for a fraudulent purpose. Even geographical names, when applied by a trader so as to become known by the designation, cannot be employed by a rival trader to effect a fraudulent purpose. (Watherspoon v. Currie, 5 H. L., 508; Newman v. Alvord, 49 Barb., 588; 10th Jur., N. S., 550.)
9. Courts of equity will enjoin the use of a man's own name when such use is employed for a fraudulent purpose. He will not be prohibited from using his name, but the manner of its use will be regulated. (Thorley's Cattle Food Co. v. Masson, 42 L. T. Rep., N. S., 851.)
10. It is not necessary that there should be an invasion of a technical trade-mark to obtain relief. If the same name or indicia are copied in such a way as to induce persons to believe that they are dealing with the person who has given the name or indicia reputation, equity will give relief. (Knott v. Morgan, 2 Keen, 213; Croft v. Day, 7 Beav., 84; Lee v. Haley, 5 L. R., Ch. App., 161; Lea v. Wolff, 13 Abb. Pr., N. S., 389.)
11. It is sufficient if the court is satisfied that there was an intent on the part of appellees to palm off their goods as the goods of Avery. (McLean v. Fleming, 6 Otto, 245.)
12. Even if the wholesale buyer is not misled, but the small retailer or the consumer is, the right of action exists. (Dixon Crucible Co. v. Guygenheim, 2 Brews., 321; Clark v. Clark, 25 Barb., 76; Brooklyn White Lead Co. v. Massury, 25 Barb., 416.)
13. Courts of equity will not only protect the use of a trade-mark proper, but along with it all other insignia by which a trader may see fit to mark his goods. (Singer Manufacturing Co. v. Brill, S.Ct. Cincinnati, 1880.
14. Abandoning their own brands, and adopting those of a rival upon imitation plows, is a fact showing that they regarded it a thing desirable to be done in and of their piratical purpose. (McAndrew v. Bassett, 10 Jurist, N. S., 550.)
15. Whether there be property in a mark or not, a rival cannot use it for the purpose of deception. (Perry v. Truefitt, 6 Beav., 66.)
16. Even when there is no trade-mark or label, courts of equity will interfere if there is a fraudulent intention of palming off one's goods as and for those of another, and such intention is being carried into execution. (Morgan Sons & Co. v. Troxell, Cox M. T. M. C., No. 674; Sawyer v. Horn, 1 Feb. R., 24; Shaw Stocking Co. v. Mack, 12 Feb. R., p. 707; Hostetter v. Adams, 10 Feb. R., 838; Lawrence Manufacturing Co. v. Lowell Mills, 129 Mass. 325; Humphreys v. Wenz, 14 Feb. R., 250.)
17. The letters " H H" (Ransom v. Bentall, Codd. Di., 163), the letters " L L" (Kinahans v. Bolten, 15 Irish Ch. R., 75), the letters " XXX" (Cook v. Starkweather, Cox M. T. M. C., 221), and the numerals " 303" (Gillott v. Esterbrook), " 2340" (Boardman v. Meriden Britannia Co.), " 830" (Shaw Stocking Co. v. Mack), " 523" (Lawrence Co. v. Lowell Mills), and " 1," " 2," " 3," and up to " 35" (Humphrey v. Wenz), were in each case used for a fraudulent purpose, and their further use prohibited.
18. The nine plows of Avery present nine pictures, all with the same coloring, and all having like symbols, but each known to the public by a distinct name or mark. The nine plows of Meikle also present nine pictures. Compare them, and we find that each is a fac simile of some one of the plaintiffs'. Put them together, and instead of eighteen distinct pictures, we have nine pair. The picture must be broken. The fraudulent purpose is apparent.
19. The remedy at law is not adequate for the protection of trade reputation, and equity has always taken jurisdiction in proper cases. (Biofield v. Payne, 4 B. & A., 410; Leather Cloth Co. v. American Leather Cloth Co., Cox A. T. M. C., 688; Stone v. Carlan, Cox T. M. C., 116; Thompson v. Winchester, 19 Pick., 214.)
20. In each case of infringement of trade-mark or trade reputation, the relief to be granted must depend upon the peculiar circumstances of that case. (Gilman v. Hunnewell, 122 Mass. 150.)
21. In this case the defendants copied the plows and brands of plaintiff for the purpose of selling their plows as Avery plows, and for the purpose of appropriating the established trade of Avery, and the relief prayed should be granted, even if the plaintiff have not the exclusive right to use those brands and indicia. (Kinney v. Basch., 16 Am. L. Reg., N. S., 596.)
22. The appellees have been guilty of unfair and illegal competition in trade. Their conduct has been immoral, their methods and devices fraudulent, and they have been intentionally practicing deception upon the public, and pirating upon the trade and trade reputation of the appellants. In such cases the chancellor never fails to restrain the wrong-doer by injunction, and compel him to render an account. (Brown on Trade-marks, sec. 535; Moses v. Sargood, Cox M. T. M. C., No. 636; Braham v. Bristow, 1 H. & M., 447; Abbott v. the Bakers, & c., Cox M. T. M. C., 213.)
GEORGE M. DAVIE, JAMES S. PIRTLE, AND W. LINDSAY FOR APPELLEES.
1. The symbols, No. A O, and " Pony," and B O, and C O which are put on these various plows, are understood by the trade as indicating both the quality and size of the plow, and upon none of them, whether made by appellants or appellees, or any of the six or eight other manufacturers, is there anything else which indicates either quality or size. The sizes No. A O, and No. B O, for instance, are so nearly the same that the man who makes them cannot tell by looking at them, one from the other. He must put something on them to distinguish them, or measure their dimensions. By actual measurement, the plows will be found to differ one half of an inch in the cut of the share, and the larger one is numbered...
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