Julius Kessler & Co. v. Goldstrom
| Decision Date | 22 March 1910 |
| Docket Number | 3,062. |
| Citation | 177 F. 392 |
| Parties | JULIUS KESSLER & CO. v. GOLDSTROM. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James L. Hopkins, for appellant.
Sylvester R. Rush, for appellee.
Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.
This is an appeal from the decree of the Circuit Court dismissing complainant's bill, brought to secure an injunction against infringement of a trade-mark and for an accounting.
It being conceded that complainant, Dessler & Co., was the owner and entitled to the sole and exclusive use of the words 'W. H. McBrayer' as a trade-mark in the sale of whisky, the only question for decision is whether defendant, Goldstrom, has infringed that trade-mark.
The facts are these: Complainant, having reason to suspect the defendant, employed two detectives to visit him at his place of business and ascertain the facts. They went, and (omitting unnecessary details) asked if they could buy some 'W. H McBrayer' whisky. A purchase of three bottles resulted each bearing complainant's trademark. The testimony concerning the negotiation is somewhat conflicting. The defendant testified that he informed the purchasers that the liquor sold to them was not the genuine McBrayer whisky. Complainant's witnesses testified that defendant did not so inform them. This conflict, if material, is irreconcilable; and it behooves us to look elsewhere for truth.
It is undisputed that defendant sold whisky, which was not genuine 'W. H. mcBrayer' whisky, with a label on the bottles showing that it was. The contents of two of these bottles were analyzed by a competent chemist, and found to be an immature alcoholic solution, with beading oil added to make it look attractive. The same chemist analyzed complainant's 'W. H. McBrayer' whisky, and found it to be a well-matured, genuine whisky. In fact, defendant admits that what he sold was not genuine whisky, but was a liquor of an inferior kind. which he had put up. It is also undisputed that defendant had in his possession a supply of labels carrying complainant's trade-mark. These were conveniently at his place of business; but defendant claims that he had them to affix to packages of complainant's genuine whisky when he sold it. His present contention is that proof of the sale of the three bottles in question (the same being all that were affirmatively shown to have been improperly sold by defendant) to emissaries of complainant is not sufficient to warrant a decree as for an infringement. The learned trial judge so ruled, saying:
'It is a fundamental rule of law that a plaintiff has no cause of complaint against a defendant for damages resulting from an act done by defendant at the instance and solicitation of plaintiff.'
If this were an action for damages, the rule so announced would doubtless be applicable. But is it applicable and controlling in this equitable proceeding? The proof shows that defendant made improper use of complainant's trade-mark. He affixed it to whisky of a kind and value inferior to complainant's, and sold that whisky with the assurance necessarily conveyed by the appearance of the trade-mark upon it, that it was genuine 'W. H. McBrayer' whisky. This conduct disclosed a purpose on defendant's part to injure the reputation of complainant's whisky. It amounted to palming off an inferior quality of his own for complainant's superior quality. Notwithstanding the fact it was sold to emissaries of complai...
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