Frank v. Sleeper

• Decision Date: 04 January 1890
• Citation: 150 Mass. 583,23 N.E. 213
• Parties: FRANK et al. v. SLEEPER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 583

23 N.E. 213

FRANK et al. v. SLEEPER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1890

COUNSEL

W.B. French, for appellants.

Geo. L Huntress, for appellees.

OPINION

W ALLEN, J.

As no evidence is before us, the only question upon this appeal is whether the decree is warranted by the allegations of the bill. The objection is that the letters "N.S." cannot, under the allegations of the bill and the terms of the decree, be held to be a valid and assignable trade-mark because the bill and the decree show that the letters were used to indicate only the quality of the cigars, and not to distinguish them from other cigars of the same quality, or that they distinguished the cigars from those manufactured or sold by other persons only as indicating that they were selected by Nathan Samuel personally. See Pub.St. c. 76, § 1; Manufacturing Co. v. Hosiery Mills, 129 Mass. 325; Hoxie v. Chaney, 143 Mass. 592, 10 N.E. 713. The argument for the defendants is that the bill and the decree show that the letters "N.S." indicate the quality of the cigars, and that they had been personally selected by Nathan Samuel, the plaintiff's assignor, and do not show that they indicate the origin or ownership of the goods, or that they differ from other cigars, except as having been selected by Nathan Samuel personally. The bill alleges that Nathan Samuel was a dealer in cigars in Boston; that David Hirsch was a manufacturer of cigars in New York, and was engaged by Samuel to manufacture cigars for him; that in the year 1877 said Samuel adopted the letters "N.S." as a trade-mark, to designate cigars of certain style and form, and made from a certain standard grade of tobacco, and of superior and uniform workmanship, manufactured by said Hirsch for said Samuel, and sold by him; that Hirsch continued to manufacture the said "N.S." cigars exclusively for Samuel, and Samuel to sell them under the said trade-mark, until he sold his business, and assigned with it the trade-mark, to the plaintiff, who has since carried on the business at the same place; that since said purchase Hirsch has continued to manufacture the said "N.S." cigars exclusively for the plaintiff, and the plaintiff has continued to sell them under the trade-mark; and that the cigars are known in the market as the "N.S." cigar. The bill alleges that labels were affixed to the boxes of cigars, copies of which are annexed to ...