Genesee Salt Co. v. Burnap

Decision Date14 April 1896
Docket Number370.
Citation73 F. 818
PartiesGENESEE SALT CO. v. BURNAP et al.
CourtU.S. Court of Appeals — Sixth Circuit

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This salt has been sold since 1884, and has come to be known among the buyers of salt as 'Genesee Salt.' The firm of Burnap & Burnap, of Toledo, Ohio, was organized in 1890 for the sale of dairy supplies. Among other supplies, they sold complainant's Genesee Salt in bags as packed by complainant. In 1892 they purchased from the Pavilion Company (a company, which makes salt at the town of Pavilion, in Genesee county, in the state of New York) dairy salt which the Pavilion Company called 'Genesee County Salt.' The salt was packed in bags made of brown toweling, and marked:

GENESEE CO.

Factory Filled

Salt

Put up Expressly for

Burnap & Burnap,

Toledo Ohio

'Factory Filled' is a term widely used to denote a quality of dairy salt.

In 1892 the salt works at St. Clair, Mich., of the company which manufactured the Diamond Crystal Salt, burned down, and Burnap & Burnap filled their orders for that salt with the Genesee County Dairy Salt. Soon after this, Burnap & Burnap issued the following circular to their customers:

Great Cut on Our Best Dairy Salt.

Owing to our large sales during the past 60 days of our celebrated Genesee County Dairy Salt, we have decided to continue selling, for 60 days longer, at the following reduced prices:

224 lb No. 1 English Bags, at $1.60 each

56 lb. No. " " " .45 "

This salt is perfect in grain; strong, white, and pure; warranted to preserve butter, and to retain the natural high flavor, equal to any other brand on the market. As further inducement to those who have no market for them, we offer, in case, for uniform empty sacks delivered to us in Toledo, $2.00 per dozen for 224-pound sacks, and $1.00 per dozen for 56-pound sacks. The above prices are for Genesee County brand only. We give you our profit on salt for above-stated time only, hoping to increase our general supply trade. Please send in your orders, and do not forget to add to the salt order other supplies, which will be shipped promptly.

Burnap & Burnap,

120 Superior Street, Toledo, Ohio.

In October, 1892, the complainant sent a circular to their customers as follows:

The Genesee Salt Company, Mercantile Exchange, 6 Harrison Street.

Works at Piffard, Livingston Co., N. Y.

New york, Oct. 15, 1892

Gentlemen: We beg leave to advise that a firm in Ohio are offering for sale what they call 'Genesee County Dairy Salt,' in reference to which would say that the salt in question is not manufactured by us, and that the action of the firm in question appears to be an attempt to obtain custom on the strength of our name and reputation.

Yours, truly, The Genesee Salt Company

The defendants reprinted the foregoing, and sent it to all their customers, and others, with this answer:

Office of Burnap & Burnap.

Toledo, Ohio, October 24, 1892

Yes, we live in Ohio, and sell Genesee County Salt, and wish all customers to know that while our salt is manufactured in Genesee County, New York, and is far superior in strength, purity, and grain to many of the well-known brands of dairy salt, we sell at reasonable prices, viz. $1.60 for each No. 2 English linen sack of 224 lbs. We also fully warrant every sack, and, if not found equal to any dairy salt, it can be returned to us, by freight, at our expense. It is not the brand, but the 65 cents gain to our customers on each sack, as well as our immense sales of this salt, that causes our competition bird to croak and flutter. We do not obtain custom on the strength of $2.25 salt, but simply on the quality and price of our goods, together with honest dealing and equal prices to all. We solicit further trial orders for our Genesee County Salt.

Yours, truly, Burnap & Burnap

Toledo, Ohio.

It appeared that Burnap & Burnap in 1891,-- the year previous,-- had applied to the Genesee Salt Company to become their agents, and this was refused. One witness testified that one of the firm of Burnap & Burnap sold him Genesee County Salt as Genesee Salt,-- that is, as the salt of the Genesee Salt Company; but this was expressly denied, and the correspondent subsequently produced gave the weight of evidence to the denial. One letter was introduced in which a request was made to Burnap & Burnap for Genesee Salt, Factory Filled, and it was answered by sending Genesee County Salt. This was all the evidence tending to show an effort on the part of the defendants to palm off, as Genesee Salt, Genesee County Salt, except the use of the abbreviation 'Co.' for 'County,' on their bags. This was apt to mislead purchasers into the belief that the salt was that of the Genesee Company. The evidence of the proprietor of the Pavilion Salt Company, which manufactured the salt, and packed it and marked it, is that he suggested the use of 'Genesee County' as the brand, and that it had been used for other customers previously. It appears that the Pavilion Salt Company's works are within a few miles of those of the Genesee Salt Company, and that no suit has been brought by the latter against the former to restrain the use of the brand of 'Genesee County Salt.' The stratum of rock salt from which the complainant's salt and that of the Pavilion Salt Company are taken is the same. It extends through several counties in the western part of New York, and crosses the Genesee valley, and is to be found in Genesee and Livingston counties. The court below entered the following decree:

This cause came on to be heard on the pleadings and proofs in the case, and was argued by counsel for both complainant and defendants. In consideration whereof, the court finds that the equities of said cause are with the complainant. It is therefore ordered, adjudged, and decreed that the said defendants, Hiram F. Burnap and James D. Burnap, their agents and servants, and each of the, be, and they are hereby perpetually enjoining and restraining them and each of them from branding or marking upon any sacks or other receptacles containing salt, not of the manufacture of complainant, the words 'Genesee Co. Salt,' or any other words or designations similar thereto, or only colorably differing therefrom, or any words or marks so contrived as to represent or lead to the belief that the salt contained in said sacks or other receptacles is the salt of the complainant, and from packing, keeping, selling, or offering for sale, or in any manner disposing of, or offering to dispose of, any salt so marked, and from advertising, by letters, circulars, price lists, catalogues, or otherwise, any salt, not the salt of the complainant, so marked or designated; and they, and each of them, are in like manner restrained and enjoined from representing, in any form or manner whatsoever, that any salt not of complainant's manufacture is the salt of said complainant. But it is ordered that this decree is not to be construed applying to or prohibiting the use by defendants of the words 'Genesee County Salt,' or 'Genesee Salt,' in...

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