Hetterman v. Powers

• Decision Date: 27 October 1897
• Citation: 102 Ky. 133,43 S.W. 180
• Parties: HETTERMAN et al. v. POWERS et al.
• Court: Kentucky Court of Appeals

43 S.W. 180

102 Ky. 133

HETTERMAN et al. v. POWERS et al.

Court of Appeals of Kentucky.

October 27, 1897

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by Powers and others against Hetterman Bros. and others to restrain defendants from using a certain cigar label. Judgment for plaintiffs, and defendants appeal. Affirmed.

Humphrey & Davie, for appellants.

Augustus E. Willson, for appellees.

HAZELRIGG J.

The appellants were manufacturers and dealers in cigars in Louisville, Ky. and, without right or claim of right, used on boxes of cigars manufactured and sold by them the blue label of the Cigar Makers' International Union of America, a fac simile of which is as follows: "Sept., 1880. Issued by Authority of Cigar Makers' International Union of America. Union-Made Cigars. This certifies that the cigars contained in this box have been made by a first-class workman, a member of the Cigar Makers' International Union of America, an organization opposed to inferior rat-shop, coolie, prison, or filthy tenement house workmanship. Therefore we recommend these cigars to all smokers throughout the world. All infringements upon this label will be punished according to law. A Strasser President C. M. I. U. of America." Thereupon appellees Powers, Kieffer, and Wopprice, suing for themselves and all their associate and fellow members in the Cigar Makers' International Union and the Cigar Makers Protective Union No. 32, and joining these two organizations, also, as plaintiffs, brought this action to prevent this alleged wrongful use of the label. The International Union embracing, according to the petition, some _____ members, and the local union, some _____ members, are voluntary, unincorporated labor organizations, composed solely of practical cigar makers. They are working-men, who do not own the products of their labor, being exclusively wage workers. The purpose of these unions, as said in the petition, is, generally, to maintain a high standard of workmanship, and secure fair wages to cigar makers; to elevate the material, moral, and intellectual welfare of the membership; and, by legitimate, organized effort, to secure laws prohibiting labor by children under 14 years of age, the abolition of the "truck" system, the tenement house cigar manufacture, and the manufacture of cigars by prison convict labor. Other praiseworthy objects are set out, which need not be detailed. It is further averred that, for the purpose of designating the cigars made by members of the unions, the label in controversy was adopted and extensively used as a trade-mark, or certificate of identification, and, when posted on the outside of cigar boxes containing cigars made by members of the unions, it is a guaranty that the cigars are made by first-class workmen, members of the cigar makers' union, etc.; that because the members receive fair wages, and were thus able to furnish good workmanship, the cigars so labeled commanded a higher price than did similarly looking cigars not so labeled; that the label was therefore a source of great profit and benefit to the appellees, and other members of the unions. The appellants, for defense, do not deny the use of the label as charged in the petition, but it is insisted by them that this label does not possess any of the elements of a trade-mark; that the appellees are engaged in no trade, having nothing to sell, and therefore nothing to protect by a trade-mark; that none of them are engaged in the business of selling cigars; that they are "simply workmen employed by other people making cigars,-first by one person, and then another,-and those persons sell the cigars"; that the plaintiffs, therefore, "have not shown any property right in the label, as a trade-mark, or otherwise"; moreover, that the membership is an ever-changing one, constantly varying in numbers, composed of a few thousands to-day, and many thousands to-morrow,-"a shifting crowd"; that the plaintiffs, therefore, are not qualified to sue, and have, in fact, no legal rights that can be made the subject of a suit.

Moreover, it is urged that the plaintiffs do not come into court with clean hands; that they are members of an organization lately engaged in boycotting the defendants, and attempting to ruin their business; that the label itself cannot be approved, either in law or morals, as it denounces other cigars than union-made ones as inferior and unwholesome, and the product of filthy tenement houses, or made by coolies and convicts.

And first, we may admit that the label is not used as a "trade-mark," in the ordinary sense of that word. It is not a brand put on the goods of the owner, to separate or distinguish them from the goods of others. But we cannot agree, on that account, that it does not represent a valuable right, which may be the subject of legal protection. Why may not those engaged in skillful employments so designate the result of their labor as to entitle them to the fruits of their skill, when it is admittedly a source of pecuniary profit to them? And this though they may not own the property itself. They are not, it is true, "in business" for themselves, in the ordinary sense; but they have property rights, nevertheless. They may not select a label, and be protected in its use apart from its connection with some commodity; but they not only select it in this instance, but they apply it to property,...