Kenny v. Gillet
| Decision Date | 03 May 1889 |
| Citation | 17 A. 499,70 Md. 574 |
| Parties | KENNY v. GILLET ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
BRYAN J. dissenting.
Argued before ALVEY, C.J., and MILLER, BRYAN, ROBINSON, STONE, and IRVING, JJ.
Charles Marshall, James McColgan, and William A Taaffe, for appellant.
C R. Goodwin and R. S. Culbreth, for appellees.
The appellees, Martin Gillet & Co., tea-traders in Baltimore city, obtained a decree for injunction in the circuit court of Baltimore city, restraining the appellant, Cornelius D. Kenny, from using certain cylindrical bags containing tea for sale, with certain labels with devices upon them, which tea was called "Hi-Hi," because the court held appellant's bags, devices, and labels to be fraudulent simulations of the appellees' trade-mark, bags, and labels for the sale of their "He-No" tea. From that decree this is an appeal.
The conclusion we have reached renders it unnecessary for us to decide whether appellant has simulated the appellees' trade-mark; for we are clearly of opinion that though he may have done so, as the circuit court of Baltimore decided he had done, but about which we express no opinion, still the appellees are not entitled to the relief asked for, because their trade-mark is accompanied with statements in their label so plainly calculated to deceive and mislead purchasers that they cannot rightfully claim equitable interference. The statements made upon the label may, possibly, not have been designed to be false and fraudulent, yet the language employed cannot be construed otherwise than as asserting, concerning the tea exposed for sale, that which is, in fact, deceptive and misleading. Courts of equity never interfere in cases of this kind, by way of injunction, where there is clear misrepresentation by the plaintiff in his trade-mark and labels. This court has several times so decided in most unequivocal terms. Careful inspection and examination of the appellees' trade-mark and label leave no doubt upon our minds that any one who is not informed of the true state of facts would be deceived thereby. The tea is put up in cylindrical packages, twisted at the top, and tied securely with a small string. Three concentric blue circles surround the twisted part as a common center. At the top and bottom of the bag or package Chinese characters encircle the bag which, translated into English, mean "Martin Gillet & Co.'s genuine 'He-No' Tea." Upon the front of the package appears the following inscription, viz.: On the reverse part of the package is printed this statement: "Kind the Chinese drink." On a blue band passing around the bag from top to bottom is this further representation: and on this band is the further statement: "This band of any color is our trade-mark." From these statements the casual reader of them would certainly understand that there was a kind of tea in China called "He-No Tea," and that this tea was the kind the Chinese drink, and that this very tea the appellees imported direct from China, and was by them guarantied to be the pure and genuine article. We were so impressed, and believed until we knew the contrary; and we do not think the most scrutinizing reader would ever imagine it to be a tea compounded of several varieties in the city of Baltimore, as the evidence clearly and undeniably shows it to be prepared in the house of the appellees, and that it was not imported, as sold, from China. The circuit court decided that the representations were not necessarily fraudulent, and harmfully misleading, and therefore granted the relief asked for. That court thought that because the component parts of the preparation came from China, and were purified by the appellees' secret process, and it was sold as pure tea, no matter if there was no variety in China known as "He-No," (as there is not,) the representation was only that it was a pure tea such as the Chinese drink; that is, unadulterated, as contradistinguished from ordinary tea, which is addulterated before exportation from China, and which the Chinese do not drink. It is not necessary that the appellees should have deliberately designed to deceive, (and in this case they may not have so intended,) yet, if what they have said in their label is naturally calculated to deceive, and must and does inevitably deceive, then the falsehood which their label conveys must bring to them the same consequences as if willfully uttered. Knowing the facts, the inscriptions may be understood truthfully, perhaps, but, ignorant of them, we cannot think any one would understand from what is said on the packages that the tea they contain was other than a particular kind of tea grown in China, and drunk by the Chinese people. No one certainly would suspect that it was a tea compounded in Baltimore of three different brands of tea, and if it were guessed to be a mixture, still it would be thought to be brought in that form from China. Indeed the statement that it is the kind the Chinese drink of necessity implies that the particular article thus described was the drink of the Chinese, and most generally used by them. Again, by calling it "Standard 'He-No' " tea, there is a plain implication that there are various grades of it, and that this is the "standard" or best article of the kind. The guaranty indorsed implies that it is "standard," and purchasers, without doubt, are misled into buying an article different from what they expect to get, and suppose, in error, that they have gotten. The incasing the tea in tin-foil, or the lining the bags therewith, is well calculated to aid the impression conveyed by the labels that it is directly brought from China in those bags, as all imported teas are brought in boxes lined with tin-foil, the better, we suppose, to protect them on the sea voyage. The attempted explanation of what is intended by the expressions employed upon the labels and in the guaranty, and accepted by the court below, does not, in our view, relieve them from their deceptive and misleading character and certain effect, which works a fraud, security against which is intended to be provided by the rule of nonintervention by courts in such case.
We cannot doubt in this case, from the proof, that the appellees, by some method which is their secret, do cleanse the teas composing this mixture of most objectionable impurities, so as to sell a good article; but this cannot excuse the deceptive statements they make in their labels, nor relieve them from the consequences of the natural and necessary import of the language employed in their labels. This case is very similar to that of Pidding v. How, 8 Sim. 477, where the representations of the plaintiff respecting his tea on the market were held to be so deceptive as to deprive him of right to injunction. To us it seems to be nearly if not quite as strong a case for the application of the rule that equity will not interfere, as the cigar case of Palmer v. Harris, 60 Pa. St. 156, or Hobbs v. Francais, 19 How. Pr. 567. The last-mentioned case was one where a powder for beautifying and preserving the complexion was called "Meen Fun," and the label was calculated to induce the belief that it was manufactured in London, and had received the patronage of "her majesty the queen." It is certainly quite as strong a case as Medicine Co. v. Wood, 108 U.S. 218, 2 S.Ct. 436, which this court followed in Siegert v. Abbott, 61 Md. 284, and there cited various other cases in support of the decision then made, and from which we do not incline to depart. It follows from all we have said that the decree must be reversed, and the bill be dismissed.
Martin Gillet & Co. filed a bill in equity against Kenny. The complainants alleged that they were engaged in the business of buying and selling teas, and that in the year 1875 they placed on the market a tea of superior quality which they called "He-No;" that this word was the invention of the...
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