C0mpany v. Lewis

• Decision Date: 30 September 1881
• Citation: 67 Ga. 561
• Court: Georgia Supreme Court
• Parties: Larrabee & C0mpany . vs. Lewis.

67 Ga. 561

Larrabee & C0mpany . vs. Lewis.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Equity. Trade Mark. Before Judge HILLYER. Fulton County. At Chambers. November 18th, 1881.

Reported in the decision.

Lanier & Anderson; Harrison & Peeples, for plaintiffs in error.

Mynatt & HOWELL, for defendant.

Crawford, Justice.

Larrabee & Company, manufacturers of crackers and biscuits, and using the word " snowflake " as their trade mark, filed a bill to enjoin T. S. Lewis from the use of the same in his business, upon the ground that the said complainants had been engaged for more than two years in their said manufacture, and had used, and still claimed the right to use exclusively, their said trade mark as against all other persons whomsoever. And yet, notwithstanding their said right, the said defendant being also a manufacturer of crackers and biscuits has unlawfully, and without their consent, used in the sale thereof their said trade mark of " snowflake."

To this bill the defendant filed a demurrer upon the grounds:

(1.) That the complainant had no right to appropriate the word 'snowflake " as a trade mark.

(2.) That it was not alleged that the defendant had used the word " snowflake " " with intent to deceive or mislead the public."

This demurrer was sustained by the chancellor, and that judgment is complained of as error.

1. The first question made is whether the word "snowflake" can be used and appropriated as a trade mark.

A trade mark is defined to be the name, symbol, figure, letter, form, or device used by a manufacturer or merchant to designate the goods he manufactures or sells, to distinguish them from those manufactured or sold by another, to the end that they may be known in the market as his, and to secure such profits as result from a reputation for superior skill, industry or enterprise. Upton\'s Law of Trade Marks, 99. The trade mark must designate and distinguish the owner\'s production from the general manufacture of the same article, and cannot consist of a word belonging to the general public describing truly a known product. 53 How. (N. Y.) Pr. 453; S. C. 6 Am. L. T., 20.

A mere general description by words in common use of a kind of article, or its nature and qualities, cannot of itself be the subject of a trade mark. 122 Mass., 139, 148.

A trade mark which designates the true origin or ownership of the article manufactured or sold, will be protected, but words which have no other relation to the origin or ownership of the goods than merely to indicate the name or quality, will not be protected. Nor will words be protected which all persons may use with equal truth as to the nature of a fact which they are used to signify, because all alike have the right to employ them for the same purpose. And so, too, a name merely descriptive of an article of trade, of its qualities, ingredients or characteristics, cannot be employed as a trade mark, and the exclusive use of it entitled to legal protection. 2 Sand. (N. Y.) 599; 7 N. Y. Leg. Obs., 301; 7 Phil. (Penn.) 253; 35 Conn., 402; 13 Wall., 311; 1 Holmes, 185; S. C. 6 Am., L. T. 20; 58 N. Y. (Sick.) 223.

That one may use an arbitrary word, when not descriptive of the character or quality of the article to be sold, seems to be settled by the rulings of various courts; noted instances of which are " Pride " as the trade mark for cigars, " Charter Oak " for stoves, " Lone Jack " for tobacco. These words not being in anywise descriptive of the character or quality of cigars, stoves or tobacco, theyhave been protected. 82 N. Y. (Sick.) 522: 44 Mo., 168; Cox\'s Manual of Trade Mark Cases, No. 669.

With these rules of law governing the question made by this record, can the word " snowflake " be classed as one not descriptive of the character or quality of the articles under which they are to be sold? In its common and ordinary sense it is understood to be descriptive of whiteness, lightness and purity, words which of necessity belong to the public—common alike to...