H.A. Williams Manuf'g Co. v. Noera

• Decision Date: 11 January 1893
• Citation: 158 Mass. 110,32 N.E. 1037
• Parties: H.A. WILLIAMS MANUF'G CO. v. NOERA. NOERA v. H.A. WILLIAMS MANUF'G CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 110

32 N.E. 1037

H.A. WILLIAMS MANUF'G CO.

v.NOERA.

NOERA

v.H.A. WILLIAMS MANUF'G CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 11, 1893.

Reports from superior court, Suffolk county; JUSTIN DEWEY, Judge.

Action by Frank P. Noera to enjoin the H.A. Williams Manufacturing Company and Ernest L. Noera from receiving certain mail addressed “Draper Oiler Company” and “Cambridge Oiler Company,” and to deliver to him the mail so addressed that had been received by them. The H.A. Williams Manufacturing Company bring a cross action to enjoin Frank P. Noera from making or selling “Draper” oilers, unless procured from them, and from using the name “Draper.” On determination of the facts reported by the superior court, the injunction against the H.A. Williams Manufacturing Company was denied, and their injunction against Frank P. Noera was granted.

Ambrose Eastman, for the H.A. Williams Manufacturing Company and Ernest L. Noera.

Ralph W. Foster, for F.P. Noera.

HOLMES, J.

These are two bills in equity, of which the second is the most important, and we therefore take that up first. It is brought by the H.A. Williams Manufacturing Company to enjoin the defendant Noera from using the name “Draper,” as applied to other oilers than those made by the plaintiff. The facts reported by the justice of the superior court, so far as material to our decision, are as follows: On February 28, 1890, the plaintiff purchased the stock in trade and good will of Francis Draper & Co., including the possession of their factory, of which they were tenants at will, and took a covenant from the members of the firm not to engage in the manufacture of oil cans for 10 years. A little later, by way of further caution, the plaintiff took from the same firm a grant of the exclusive right to the use of the word “Draper” for oilers for the same 10 years. Draper & Co. had made hardware since 1833, and had put their name, “Draper,” on different articles of their make. About 1880 they began to make oilers, and put their name upon them in various forms, to denote that the cans were of superior excellence. We infer that Draper & Co. acquired a right to be protected to the usual extent in the use of the word “Draper,” and we see no sufficient reason to doubt that, in view of the continuity of the business, the name was capable of assignment by Draper & Co. to the plaintiff. Cement Co. v. Le Page, 147 Mass. 206, 209, 17 N.E.Rep. 304; Hoxie v. Chaney, 143 Mass. 592, 10 N.E.Rep. 713; Bury v. Bedford, 4 De Gex, J. &. S 352.

The plaintiff has a prima facie case, and no fact is found by the judge which meets it as matter of law. Certain facts are reported, however, from which we are asked to infer that before 1890 the word “Draper” had become public property, and “had acquired a generic meaning, descriptive of a general kind, quality, and class” of goods. Thomson v. Winchester, 19 Pick. 214, 216. Whether it had done so or not is a pure question of fact, and evidently was considered to be such in Thomson v. Winchester, where Chief Justice SHAW's proposition is that, if the term “Thomsonian Medicines” had acquired such a meaning, the plaintiff, having no patent, had no exclusive right to call his medicines “Thomsonian.” See Burton v. Stratton, 12 Fed.Rep. 696, 701, 702. It is to be regretted that the judge who heard the evidence should not have found the fact one way or the other. All that we can say is that, so far as we can judge, the facts put in evidence do not lead to the inference that Draper & Co. had lost their rights. See Horton Manuf'g Co., Jamestown, v. Horton Manuf'g Co., Ft. Wayne, 18 Fed.Rep. 816. The facts are: First. That for some years before 1888, and also since, there have been inferior oilers in the market, resembling the genuine article, and called “Draper Oilers” and “Star Oilers.” Next. From 1880 to 1884, one Alden bought some cans from Draper & Co., manufactured cans resembling theirs, and marked those in which he dealt, “Draper Oiler Company...