Heller & Merz Co. v. Shaver

• Decision Date: 23 June 1900
• Citation: 102 F. 882
• Court: U.S. District Court — Northern District of Iowa
• Parties: HELLER & MERZ CO. v. SHAVER et al.

102 F. 882

HELLER & MERZ CO. v. SHAVER et al.

United States Circuit Court, N.D. Iowa, Cedar Rapids Division.

June 23, 1900

Offield Towle & Linthicum and U.C. Blake, for defendants.

In Equity. Suit to enjoin unfair competition in trade. On final hearing.

SHIRAS District Judge.

The purpose sought by complainant in this case is to restrain the defendants from making use of the brands 'American Ball Blue' and 'American Wash Blue' in the sale of ultramarine blue manufactured by parties other than the complainant corporation. The evidence shows that about the year 1870 the firm of Heller & Merz engaged in the business of manufacturing and selling ultramarine blue or bluing at Newark, N.J.; that in January, 1889, the partners formed a corporation under the laws of the state of New Jersey, which succeeded to the business and rights of the pre-existing firm, and has since conducted the business of manufacturing and selling ultramarine blue under the corporate name of the Heller & Merz Company. It is further shown in the evidence that, about the year 1875, the firm of Heller & Merz prepared and put upon the market a laundry blue under the designation or brand of 'American Wash Blue,' and in the year 1876 they put upon the market what is known as 'American Ball Blue.' It also appears that in these years the firm of Pomeroy & Olmsted were engaged in business at Cedar Rapids, Iowa, as manufacturers of laundry soaps and jobbers of sal soda and rosin, and in 1878, if not earlier, they became interested in the sale of the ultramarine blues manufactured by Heller & Merz. The relation which existed between the parties is made clear by the following letters written by Pomeroy & Olmsted:

Office of Pomeroy & Olmsted, Manufacturers of Laundry Soaps and Jobbers of Sal Soda and Rosin.

Cedar Rapids, Iowa, Feby. 12, 1878.

Messrs Heller & Merz, New York City-- Gentlemen: Inclosed find drft to your order for one hundred forty-three & 70/100 dolls.; also, duebill for (1) case W. Blue, for which we allowed $3.50. Can we chrg. tour a/c with that amt? Please send one bbl. blue (10 cakes in each pckg., same as we have had) & we would like some cards to paste on our boxes, and any other ad. matter you think would tell. We can distribute it to good advantage. What would you charge us for 50 bxs. put up with our name on & in good shape? If you would make us figures, we would endeavor to reach the jobbing trade that are not now handling your goods. Think the blue, as we get it, suits the trade of this section better than would the ball. Awaiting your acknowledgment of receipt, we remain,

Yours, truly,

Pomeroy & Olmsted.

Office of Pomeroy & Olmsted, Manufacturers of Laundry Soaps and Jobbers of Sal Soda and Rosin.

Cedar Rapids, Iowa, July 5th, 1878.

Messrs. Heller & Merz, New York City-- Gentlemen: Your proposition to furnish us the wash blue in lots of 100 boxes, put up with our name, &c., at $2.50, is accepted and we shall endeavor to dispose of what we have first recd. as speedily as possible. We have kept steadily at work, introducing the blue, wherever we could get merchants to try it, and, though some have returned it, we were confident it was no fault of the article itself, but rather that of the ones using. Now, however, we begin to have calls for it from parties who have been selling other blues, and the prospect is very encouraging. You may have inquiries for prices & perhaps orders for it from dealers in this section of the country. If so, we trust you will refer them to us, and believe it to be to your, as well as our, interest to do so. We have made the prices very reasonable ($3.50 to retailers and $3.00 to jobbers), and assure you will make every effort to push the goods. You may look for an order from us in a short time.

Yours, very truly,

Pomeroy & Olmsted.

P.S. Any advertising matter you may send us will be carefully distributed. Would it not be a good idea to put some nice show cards in our soap boxes? It would scatter them very generally. Anything our traveling men could carry with them, and scatter along in the stores and towns they visit, if you will send, we will see it so disposed of. Please give the matter your attention and oblige,

P. & O.

Some time about the end of the year 1879, E. F. Pomeroy retired from the firm of Pomeroy & Olmsted, and the business was carried on in the name of G. M. Olmsted & Co., and the following letters were sent by them to Heller & Merz: T. M. Sinclair, President. H. B. Soutter, Secretary. G. M. Olmsted, Treasurer.

G. M. Olmsted & Co. (Incorporated), Soap Makers, and Agents for American Wash Blue.

Cedar Rapids, Iowa, May 29th, 1880.

Messrs. Heller & Merz, New York City-- Gents: Please send us 100 boxes 'Am. Wash Blue.' If you can substitute our name for that of P. & O. on the label without too much trouble, we would be pleased to have you do so. Will send drft. to balance a/c in short time. What discount do you give for cash on receipt of invoice?

Yours truly,

G. M. Olmsted & Co.

T. M. Sinclair, President. H. B. Soutter, Secretary. G. M. Olmsted, Treasurer.

G. M. Olmsted & Co. (Incorporated), Soap Makers, and Agents for American Wash Blue.

Cedar Rapids, Iowa, June 25th, 1880.

Messrs. Heller & Merz, New York City-- Gents: Inclosed we hand you S.D. for two hundred eighty-six and 00/100 dolls. to bal. on a/c. Please send receipt. We have heard nothing from our order of May 29th. Can we expect the goods soon? Have been entirely out for two weeks, and have orders now for 25 bxs. We have established depots for sale of our soaps in Dakota, Minnesota & Sioux City and Des Moines, to ship to these points in car-load lots, and have put in the blue also. In this way we have (6) different jobbing houses introducing the goods, and we believe we will very largely increase our trade in your blue, though in meantime it obliges us to carry a large stock at these different points. People here West are slow to take hold of new articles unless they are guarantied to give satisfaction, and we have found it very hard work to battle against the bottle blue, which is very universally used in this part of the country. We are gradually, however, overcoming the prejudice, and, when once used right, find no trouble in selling again. If you would put a cheap wrapper around each package, with instructions for using plainly & simply printed thereon, it would be a great benefit to us all. A great many instances have come to our knowledge of consumers dropping the cake directly into the water, and of course were not satisfied, and ready at once to declare the blue a humbug. Our traveling men say, 'We could sell far more if it was put up in smaller boxes, and so as to retail for 5¢.' Could you not put up the blue, say 5 lozenges in a package, and 30 packages in a box, same style in every respect otherwise? Please give us figures at once, and, if so we can see a fair margin, will take 100 bxs. Our Mr. Pomeroy, having gone into the soap business at Minneapolis, Minn., will very likely wish to handle the blue there. As we have worked up a trade in Southern Minnesota & Dakota, he would very likely trespass on that territory and injure us. If you will refer him to us, we will sell him at a very small advance, or, if you will put it up in a different style entirely for him, we will not object. Hoping to hear from you at once, and trusting we shall soon be in receipt of the blue ordered, we remain.

Very truly yours,

G. M. Olmsted & Co.

P.S. Please name discount you are willing to give for cash.

In 1897, and after the death of G. M. Olmsted, the defendants, having associated themselves in business under the firm name of Shaver, Blake & Co., bought the assets of G. M. Olmsted & Co., and announced themselves as successors to G. M. Olmsted & Co., and as manufacturers of American Ball Blue and American Wash Blue, addressing to the trade letters, of which the following is a sample:

Shaver, Blake & Co., Successors to G. M. Olmsted & Co., Manufacturers of American Ball Blue, American Wash Blue.

Cedar Rapids, Iowa, Aug. 18, '98.

Kothe, Wells & Bauer, Indianapolis, Ind.-- Gentlemen: We desire to again call your attention to our quotations of one and two ounce American Ball Blue, and the fact that we guaranty the quality. Any letters that you may received from competitors, advising you that we have no right to the name 'American Ball Blue,' we would ask you to forward to us, and we will promptly give them the attention they deserve. We assure you that we have an undisputable right to the brand, and shall continue offering it. We have had the brand American Wash Blue on the market for twelve years, and shall continue to offer it, together with American Ball Blue, at greatly reduced prices. We would appreciate your correspondence and inquiries, and would solicit the opportunity of submitting samples.

Very truly yours,

Shaver, Blake & Co.

It will be noticed that, so long as the business at Cedar Rapids was conducted by the firms of Pomeroy & Olmsted and G. M. Olmsted & Co., they were acting in unison with the complainant, and were engaged in advertising and selling the product manufactured by Heller & Merz, using, in so doing, the names of 'American Wash Blue' and 'American Ball Blue.' When the defendants, claiming to be the successors of G. M. Olmsted & Co., entered into business at Cedar Rapids, they became at once competitors with complainant in the sale of laundry blue, and they represented that they were the manufacturers of American Ball Blue and American Wash Blue, having an indisputable right to the brand 'American Wash Blue.' This competition at once affected the business of complainant, and, as the letters from their customers printed in the record clearly disclose, the action...