Chickering v. Chickering & Sons

• Decision Date: 06 January 1903
• Docket Number: 921.
• Citation: 120 F. 69
• Parties: CHICKERING et al. v. CHICKERING & SONS.
• Court: U.S. Court of Appeals — Seventh Circuit

120 F. 69

CHICKERING et al. v. CHICKERING & SONS.

No. 921.

United States Court of Appeals, Seventh Circuit.

January 6, 1903

In the year 1823, Jonas Chickering, at Boston, Mass., commenced the manufacture of pianos. As early as 1844 he adopted the word 'Chickering' as the distinguishing name of pianos of his manufacture, and from that time to the present pianos manufactured by him and by those associated in business with him and by his successors in business have been continuously marked on the fall board of the piano with the name 'Chickering' in the old English style of lettering surrounded by scroll work, with the words underneath in clear type, 'Boston, U.S.A.'; and the name 'Chickering' has become associated in the public mind as the name of the piano made at the factory in Boston, and the name has acquired a secondary signification indicating that particular make of piano, and the name is of great value. In the year 1852 his three sons, Thomas E., C. Frank and George H. Chickering, became associated with him in business under the firm name of Chickering & Sons. Jonas Chickering died in December, 1853. The business was continued by the surviving members of the firm under the same name. One of the sons died in 1871, and the surviving sons in the year 1886 incorporated the business according to the laws of New York under the corporate name of Chickering & Sons. This incorporation was had under the laws of the state of New York, because it was desired to preserve the name 'Chickering & Sons,' and under the law of Massachusetts, as then existing, that name could not be taken by a corporation. The business and manufacture, however, have always been located at Boston. Of this corporation one son became president and the other treasurer, and so continued until the year 1891, when one of the sons died. The survivor George H. Chickering, thereupon became president of the company, and a Mr. Foster the treasurer; Mr. Chickering having $300,000 and Mr. Foster $50,000 of the total capital of $600,000. How much of the capital stock continued to be held by the estate of the deceased son does not appear. Mr George H. Chickering died in the year 1899, and was succeeded as president of the corporation by Mr. Foster, the former holdings of Mr. George H. Chickering being held by trustees for the benefit of the family. In 1901, under an act of the commonwealth of Massachusetts, then recently passed, the parties in interest formed a corporation under the laws of that state under the corporate name of 'Chickering & Sons,' which corporation took over the business from the New York corporation, and has since continued it. The factory building now occupied by the complainant is the same factory building used since the year 1853, and was occupied by the Chickerings without interruption until the formation of the corporation, which continued to occupy it and now occupies it, employing 400 men in the manufacture of pianos, the annual output being 3,500 in number. In the year 1867, the firm of Chickering & Sons was awarded by the French government the first prize for pianos exhibited at the World's Exposition of that year in Paris, and the cross of the Legion of Honor was granted as a reward of merit. This cross had on one side an eagle and on the reverse side the head of Napoleon surrounded with a chaplet of laurel. Chickering & Sons, firm and corporation, have, since the conferring of the cross, displayed a representation of it in their business. In 1897 it was registered by them under the laws of the United States as a trademark for use in connection with the manufacture and sale of pianos. It has since been affixed to the pianos manufactured by them, and been used in their letter heads and general publications. The appellants, Clifford C. and Frederick W. Chickering, are great-nephews of Jonas Chickering, and were employed by the firm of Chickering & Sons in different ways between the years 1883 and 1890. In 1892 they started business in Chicago under the firm name of 'Chickering Bros.,' engaging in the piano business, and sold pianos, the parts for which, at the beginning of the business, were made by other concerns and assembled by Chickering Bros. The business conducted was a small one, and in 1895 Frederick W. Chickering withdrew because the business was insufficient to support the two brothers, Clifford C. continuing the business alone under the name of Chickering Bros. until 1902, just prior to the commencement of this suit, when Clifford C. Chickering, Frederick W. Chickering, and L. P. Chickering (the last-named being the wife of Clifford C. Chickering), incorporated under the name of 'Chickering Bros.' for the purpose of continuing the manufacture of pianos. Their pianos were marked upon the fall board 'Chickering Bros.' in old English style of lettering, the word 'Chicago' underneath. Their letter heads and certain of their advertising matter had the impress of a Maltese cross, with a head in the center, and in some of them the Maltese cross had an eagle in the center. When that was adopted does not definitely appear. The letter heads also contained underneath the cross the words, 'Manufacturers of Chickering Bros. 'Clifford' Pianos. ' Whether, prior to the death of Mr. George H. Chickering, in 1899, the appellants made or sold pianos otherwise than as 'Clifford,' does not definitely appear by the record. Their sale as 'Clifford' pianos was discontinued in the year 1898. On the back of their piano, in a recessed place, was posted a notice as follows:

'Special Notice: In order to prevent confusion, and possible misrepresentation, we wish to state that the firm of Chickering Bros. has no connection whatever in a business sense with the eastern company of the same name. Our pianos are made in Chicago, after our own scales, patterns, and methods of construction, and we place them on the market with confidence, relying on the discernment of the public and the trade to accord them that pre-eminence which their merits deserve.'

After the death of Mr. George H. Chickering, in 1899, they put forth in their catalogues and other printed matter statements that they were not only related to the Boston Chickerings but were the nearest of kin in the male line; that they received 10 years' practical training in their factory, and 'that since the death of George H. Chickering (the last of the firm of Chickering & Sons) we are now the only Chickerings making a piano. ' They also put out a booklet giving 'a sketch of the Chickering family and their famous piano,' which contains a sketch of both branches of the Chickering family, a history of the career of Jonas Chickering, and of the appellants' connection with that business before they engaged in business in Chicago, and concluding with the...