J. & P. Baltz Brewing Co. v. Kaiserbrauerei, Beck & Co.

• Decision Date: 04 May 1896
• Docket Number: 11.
• Citation: 74 F. 222
• Court: U.S. Court of Appeals — Third Circuit
• Parties: J. & P. BALTZ BREWING CO. v. KAISERBRAUEREI, BECK & CO.

74 F. 222

J. & P. BALTZ BREWING CO. v. KAISERBRAUEREI, BECK & CO.

No. 11.

United States Court of Appeals, Third Circuit.

May 4, 1896

Louis C. Raegener, for appellee.

Before ACHESON, Circuit Judge, and WALES and GREENE, District Judges.

WALES District Judge.

This is a suit for the infringement of a common-law trade-mark. The complainant is an alien corporation, having its principal place of business at the city of Bremen, in Germany. The defendant is a domestic corporation located in the state of Pennsylvania. Both parties are engaged in the business of manufacturing and selling beer. The complainant claims that it was the first to adopt and use the word 'Kaiser' as a trade-name or trade-mark for the product of its brewery and that from the time of such adoption and use, in November 1874, it has continued to export its beer, in kegs and bottles labeled, marked, or stamped 'Kaiser Beer,' to its agents in the United States, where it has acquired a large and lucrative sale. The bill charges that the defendant makes and sells an article called 'Kaiser Beer,' which comes into unlawful competition with the beer of the same name manufactured and sold by the complainant. The proofs establish the fact of priority of use by the complainant of the word 'Kaiser' as a trade-mark in the United States, and it is admitted that the defendant uses the same word for a like purpose; but the latter denies the right of the complainant to the exclusive use of the word because it has been long used in Germany to indicate a certain excellence of quality, or superiority over other beer, and to designate beer of a certain grade or color irrespective of the brewery producing the same. There is some evidence tending to show that there was an occasional use of the word 'Kaiser,' as a name for beer, in Germany soon after the coronation of Emperor William I., but there is no evidence that it had been used or adopted as a trade-mark for beer in that country. It also appears that the word could not have been so used, under the laws of Germany, which do not permit or recognize the exclusive use of any word, apart from some symbol or figurative design, as a trade-mark. In this respect the common law and the municipal regulations of the United States and of Germany are different; and, even were they not, it has been held by our courts that a person must have shown an actual intention to acquire a title to a trade-mark before it will be protected. A merely casual, interrupted, or temporary use will not support such title, nor will a court of equity recognize by injunction a proprietary right in a phrase or name, unless it has been used in such circumstances, as to publicity and length of use, as to show an intention to adopt it as a trade-mark for a specific article. Menendez v. Holt, 128 U.S. 514, 9 Sup.Ct....