Ferguson-McKinney Dry Goods Co. v. J. a Scriven Co.

• Decision Date: 19 November 1908
• Docket Number: 2,826.
• Citation: 165 F. 655
• Parties: FERGUSON-McKINNEY DRY GOODS CO. v. J. A. SCRIVEN CO.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 655

FERGUSON-McKINNEY DRY GOODS CO. v. J. A. SCRIVEN CO.

No. 2,826.

United States Court of Appeals, Eighth Circuit.

November 19, 1908

Samuel S. Watson and George W. Winstead (Walter B. Raymond, on the brief), for appellant.

Arthur v. Briesen (George W. Case, Jr., on the brief), for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and W. H. MUNGER District Judge.

W. H MUNGER, District Judge.

This case is one similar to those of Rice-Stix Dry Goods Co., and Premium Mfg. Co. v. J. A. Scriven Co. (just decided) 165 F 639. The questions as to the right of complainant to the exclusive use of the elastic buff-colored strip or insertion and trade-mark to the words 'elastic seam,' were disposed of in those cases and govern as to those questions this case.

The only thing to be considered now is, does the evidence show these defendants to have been guilty of unfair trade? The evidence shows that prior to the year 1903 defendant used cartons and markings which were probably in simulation of complainant's, but since that date the cartons and markings have been entirely dissimilar. In January, 1903 Messrs. Bakewell & Cornwall, counsel for complainant, wrote defendants, calling their attention to the fact that they were violating complainant's rights in the use of the buff-colored strip, the words 'elastic seam,' and simulating their markings. The president of defendant company immediately called upon Messrs. Bakewell & Cornwall, said they would discontinue those markings, and showed complainant the boxes and markings which they had arranged to use in the future, and since that date the boxes used by defendant, instead of being white, are of a dark color, the markings being entirely dissimilar and disclosing the true maker or manufacturer. Defendants' drawers are stamped in red with the monogram 'F. Mc K.' and the words 'Own Make.' Since January, 1903, complainant made no further objection to the markings and boxes of defendant. The only complaint made by complainant since that date was of the use of the buff-colored strip and the words 'elastic seam,' or words of such import. All the advertisements of defendants offered in evidence plainly show that their drawers are not of complainant's manufacture, except one advertisement of date November, 1900, one of March, 1901, and one of September, 1902. Since those dates all advertisements have clearly indicated the true maker and manufacturer.

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