City of Carlsbad v. Kutnow

• Decision Date: 02 December 1895
• Citation: 71 F. 167
• Parties: CITY OF CARLSBAD et al. v. KUTNOW et al.
• Court: U.S. Court of Appeals — Second Circuit

71 F. 167

CITY OF CARLSBAD et al. v. KUTNOW et al.

United States Court of Appeals, Second Circuit.

December 2, 1895

A. V Briesen, for appellants.

Chas G. Coe, for appellees.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

The circuit court found: That the complainant the city of Carlsbad is now, and has been for many years, the sole and exclusive owner of the mineral springs situated at the city of Carlsbad, the waters of which have been known and celebrated for many years for their peculiar and characteristic healing, medicinal, and curative qualities and that said city is also, and has been for many years, the sole and exclusive owner of the lands on which said springs are located. That many years ago the said city of Carlsbad began to evaporate and prepare the waters of the Carlsbad Sprudel Spring-- one of the said mineral springs-- into a crystalline salt, and to sell the same by and under the name and designation of 'Karlsbader Sprudel Salz,' or, in anglicized form, 'Carlsbad Sprudel Salts,' and continued to so prepare, call, mark, and sell the said salts until in or about the year 1882, when the said city commenced also to prepare the salts evaporated from the genuine waters of said spring in a powdered form, and to sell the same thereafter; and in or about the year 1887 the said city, in order to further distinguish and identify said salts in each of said forms so prepared, commenced to call, mark, and sell the said salts in distinctive boxes or packages and distinctive bottles in their crystalline form, under the name of 'Carlsbad Sprudel Salt (Crystal), ' and in their powdered form under the name of 'Carlsbad Sprudel Salt (Powder Form).' That prior to January 1, 1887, the city of Carlsbad gave by contract to the complainant named and set forth in the bill as trading and doing business in Carlsbad as Loebel Schottlander, for the term of 15 years, the sole and exclusive right to sell the products of the Carlsbad Springs, including the said salts in their crystallized and powdered form; and that said firm of Loebel Schottlander, on or about January 1, 1887, gave by contract to the complainant the Eisner & Mendelson Company the sole and exclusive right to sell said product in the United States. That the last-named complainant has expended large sums of money in advertising the said Carlsbad waters and products, and in popularizing them, and extending their sale throughout the United States; and that the said Carlsbad salts have become widely and favorably known throughout the United States by and under the generic name and designation of 'Carlsbad Sprudel Salts,' and the specific terms of 'Carlsbad Sprudel Salts (Crystal)' and 'Carlsbad Sprudel Salts (Powder Form).' These findings are sustained by proof, and to none of them have defendants assigned error.

The circuit court further found that in short trade phrase and abbreviated and popular form the salts are known here as the 'Carlsbad Crystal' and 'Carlsbad Powder.' There is sufficient proof to sustain such findings, and no substantial conflict of evidence on that point. Both crystal and powder are wholly natural compounds, with no artificial admixture. Their chemical ingredients come from the Sprudel Springs, and from nowhere else. Under the older process of evaporation, by which the crystal is produced, some of the soluble constituents of the Carlsbad water are apparently not retained, and the product liquifies at about 90 degrees F. The powder contains all the soluble constituents of the water, and is easily kept in any climate. It is prepared by a more elaborate process of evaporation, which includes the introduction of carbonic acid gas, but that gas is not artificially prepared; it is taken from the spring itself. The Carlsbad Sprudel Salts in either form, therefore, is a natural product, and well known as such; and there is no proof in the case that the complainants have used the name Carlsbad upon any but genuine Carlsbad Sprudel Salts. And we concur, with the circuit judge in the finding that there is no evidence in the record that any artificial salts have from similarity or otherwise come to be known by the name of Carlsbad, as is the case with the Epsom salts, a term now generally applied to sulphate of magnesia, whether such sulphate of magnesia comes from Epsom or not. Under these circumstances the complainant the city of Carlsbad has the right to indicate the origin of these natural salts by its own name, and would be entitled to the aid of a court of equity to prevent any one from using that name to induce the public to accept as genuine artificial salts not the product of the Carlsbad Spring. The complainants proved the sale by defendants of a preparation designated on the package by the term, 'Kutnow's Improved Effervescent Carlsbad Powder.' A qualified expert chemist analyzed the contents of the package. He also analyzed the contents of a bottle of the genuine Carlsbad powder. The results of such analysis are:

Genuine Carlsbad. Defendants' Package.

Sulphate of potassium ..... 3.85% ...................................

Sulphate of sodium ........ 41.62 Sulphate of sodium................. 9.53%

Carbonate of sodium ....... 3.16 ...................................

Bicarbonate of sodium ..... 31.08 Bicarbonate of sodium.............. 27.36

Chloride of sodium ........ 18.19 Chloride of sodium................. 2.59

Bicarbonate of lithion .... 0.24 ...................................

.................................. Rochelle salts..................... 41.2

.................................. Free tartaric acid................. 15.27

Water ..................... 1.86 Water.............................. 3.7

The witness further testified that the two compounds are entirely different in their chemical composition, and that the alkalinity, which it appears is a distinguishing characteristic of all products of the Carlsbad Springs, water and salts alike, is very much reduced in the defendant's compound; the respective alkalinity of the two being represented, respectively, by 23.3 per cent. and 5.12 per cent. These comparative analyses are criticised by the defendant because the sample of genuine salts used by the witness was Carlsbad powder, and not Carlsbad crystal. The preparation which defendants sell, however, is described as 'Kutnow's Improved Effervescent Carlsbad powder,' a phrase which is calculated to suggest that it is Carlsbad powder which has been 'improved' and made effervescent by Kutnow; and a comparison of defendants' compound with the genuine powder was, therefore, a fair one. From his analyses the witness was able to state that defendants' preparation did not contain Carlsbad powder. Carlsbad crystals, however, it will be remembered, lack some of the natural mineral constituents which Carlsbad powder contains. The witness, therefore, on cross-examination, admitted that it was possible that defendants' compound might contain some salts gained by evaporation from natural Carlsbad spring water. He was positive, however, in the assertion that 80 per cent. of the compound was...