Hildreth v. D.S. McDonald Co.
| Decision Date | 19 June 1895 |
| Citation | 164 Mass. 16,41 N.E. 56 |
| Parties | HILDRETH v. D.S. MCDONALD CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The decree rendered was as follows: "This case came on to be heard at this term, and was argued by counsel and thereupon upon consideration thereof, it is ordered adjudged, and decreed that a writ of injunction now issue to restrain said defendant, the D. S. McDonald Company, its officers, servants, agents, and attorneys, from printing, or causing to be printed, in red, upon yellow wrappers, adapted to be used in putting up molasses candy, substantially in the size, shape, and manner in which said plaintiff, Herbert L Hildreth, puts up and offers for sale the molasses candy made by him, the name 'McDonald,' or any other name, word mark, or device whereby any candy sold or offered for sale by the defendant shall be caused to resemble in its dress and appearance said candy of the plaintiff, and also from putting up, offering for sale, or selling any molasses candy or candy similar thereto put up in yellow wrappers, with the red printing thereon, substantially like Exhibit B annexed to the bill of complaint herein."
Alexander P. Browne and Berry & Upton, for plaintiff.
J.E. Maynadier, for defendant.
There is no question of trademark in this case. The only question is whether the plaintiff is entitled to an injunction on the ground that the defendant company was passing off its molasses candy as and for molasses candy made by the plaintiff, and thus injuring the plaintiff by unfair competition. On the report it would seem that others before the plaintiff had made molasses candy of the same size and shape, and wrapped the pieces in the same kind and size of paper, with twisted ends. To this combination, which was not original with the plaintiff, he added the printing of the word "Velvet," in red script letters, upon the middle and ends of the wrappers. The defendant company used the same combination of size and shape of the candy, and the same kind and size of paper and manner of wrapping, all of which it had a right to do. But to this it added the printing in Roman letters, instead of script, of another word, viz. "McDonald," in red ink, upon the middle of the wrappers, but not upon the ends. It is found that the public is thereby in fact deceived into believing that the defendant's goods are the plaintiff's goods, and that the resemblance was not accidental. It is not expressly stated, but we must assume, that the public who are deceived are persons of ordinary caution and prudence. The injunction which was granted was expressly limited to the printing in red...
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C.A. Briggs Co. v. National Wafer Co.
... ... his brands or the style of his packages to palm off their ... goods as his. Hildreth v. D. S. McDonald Co., 164 ... Mass. 16, 41 N.E. 56, 49 Am. St. Rep. 440; George G. Fox ... Co ... ...
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H. P. Hood & Sons, Inc. v. Whiting Milk Co.
...appropriate limitations, where color and other elements in combination have operated to confuse the public. See Hildreth v. D. S. McDonald Co., 164 Mass. 16, 17, 41 N.E. 56 (relief against 'a palpable imitation' of the plaintiff's red printed yellow wrappers of molasses candy); Grocers Supp......
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...for imitation, as in packages of chocolate (Baker v. Slack, 130 Fed. 514, 65 C. C. A. 138), or velvet candy (Hildreth v. McDonald Co., 164 Mass. 16, 41 N. E. 56, 49 Am. St. Rep. 440), or shoes (W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co., The plaintiff urges, however, that "Lapointe," altho......
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