J.W. Epperson & Co. v. Bluthenthal

• Decision Date: 20 December 1906
• Citation: 149 Ala. 125,42 So. 863
• Court: Alabama Supreme Court
• Parties: J. W. EPPERSON & CO. v. BLUTHENTHAL ET AL.

42 So. 863

149 Ala. 125

J. W. EPPERSON & CO. v. BLUTHENTHAL ET AL.

Supreme Court of Alabama

December 20, 1906

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Suit by Aaron Bluthenthal and another against J. W. Epperson & Co. From a decree for complainants, defendant appeals. Reversed and bill dismissed.

The case made by the bill is: That orators are large manufacturers and jobbers of whiskies, brandies, etc., and sell their goods to the retail trade in Montgomery. That they manufacture, bottle, and sell, and have for four years past manufactured, bottled, and sold, a certain kind, grade, or quality of whisky put up in a certain kind or style of bottles. The said bottles containing said whisky have attached to the sides thereof a label or trade-mark with the following words thereon: "Old Joe, V. O. S. Rye Whiskey. Bluthenthal & Bickart, Sole B. & B. Proprietors, Atlanta and Cincinnati"--and a likeness of a human head and bust on said label. Said bottles also had and have a small corkscrew attached to the neck of said bottle, and over the cork therein a label, which label contains the words: "Not genuine, unless this seal is unbroken. Bluthenthal & Bickart B. & B. Proprietors." A sample of the device, and a picture of the device and bottle, are made exhibits to the bill. That the said label is, and for four years last past has been, a trade-mark of orators, their own property, and used by them in their said business to designate the said whisky manufactured, put up in packages of said bottles, and sold by them exclusively. That orators have been engaged exclusively and extensively in the sale of said whisky under said trade-mark for a long period of time, to wit, four years last past, and that by their diligent efforts and advertising said brand of whisky so sold under said trade-mark has acquired extensive demand and wide reputation for its excellence and good qualities, and is a favorite brand in the trade in the Southern states generally, and in said Montgomery. That orators have used the said label and other constituent features of their trade-mark or device without change for four years last past, and that they are now using them, and they aver that they have the exclusive right to the use of the label and other parts of said device or trade-mark, and that the same is their property for the uses and purposes aforesaid, to which they are entitled to the exclusion of all others. That defendants, well knowing the right of orators in and to said trade-mark or device as above described, and since orators' rights were acquired, and since orators became exclusively entitled in the premises and wholly without orators' consent, and in violation of their rights, have fraudulently and unlawfully offered for sale and sold their so-called whisky, of a very inferior quality, not manufactured or put up by orators, which has been put up and contained in bottles resembling those used by your orators in size, shape, color, and appearance. And the defendants have attached to the bottles containing their whisky, which bottles are similar in size, shape, and appearance to those used by orators, a label or labels containing thereon the words: "Old Jack, J. W. E. Rye Whiskey. J. W. Epperson & Co., Sole J. W. E. Proprietors Montgomery, Ala."--and also an illustration of a man's head and bust. The said labels so used by the defendants are of substantially the same size and shape, and gotten up in the same style, and with the use largely of the same type as the label used by orators. And the defendants have also, for the purpose of more closely copying orators' package, fraudulently and unlawfully attached to their said bottles a corkscrew similar in size and appearance to those attached to bottles put up by orators, and sold by them, and the said defendants have also pasted along the neck of the said bottles and over the corks therein a label similar in size and shape and appearance to that used in a like manner by your orators as above set out, containing the words: "Not genuine unless this seal is unbroken." That defendants have actually sold and continue to sell whisky put up in said packages and as the product of the manufacture of orators, representing it to be such when asked for that brand of whisky, under the labels and devices used by defendant as above set out. And orators further show that the defendants, by the use, fraudulently and falsely, of the words, pictures, label, corkscrew, and bottles as shown above, are guilty of unfair and fraudulent competition in business, and that it is inequitable and...