Landon v. Watkins
| Decision Date | 22 May 1895 |
| Docket Number | Nos. 9162 - (32).<SMALL><SUP>2</SUP></SMALL>,s. 9162 - (32).<SMALL><SUP>2</SUP></SMALL> |
| Citation | 61 Minn. 137 |
| Parties | GEORGE C. LANDON and Another v. J. R. WATKINS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
is the full name, and J. R. Watkins of WINONA, MINNESOTA, THE SOLE AND ONLY PROPRIETOR and successor to Richard Ward.
bottle, and take no substitute.
J. R. WATKINS
Sole Proprietor of Dr. Ward's Remedies
WINONA, MINNESOTA
To the Patrons of Dr. Ward's Vegetable Anodyne Liniment:
I, Richard Ward, known also as Dr. Ward, of Charlottesville, Hancock county, state of Indiana, am the same Ward who for many years made and sold an article of proprietary medicine known as "Ward's Celebrated Liniment." About two years since my attention was called to the fact that a certain firm of druggists, residing in Wabasha county, state of Minnesota (meaning these plaintiffs), were taking the unwarranted liberty of using my name in connection with a liniment the formula of which I never used or acknowledged as my own.
In July, 1856, I met a poor crippled preacher on his way to Minnesota, and out of pity for his forlorn condition I gave him a formula for a certain liniment then in use, known as "Dr. Wilson's Botanical Liniment." This Dr. Wilson-Sands' Liniment contains LARGE QUANTITIES OF TURPENTINE, and in color and appearance is calculated to deceive when substituted for Dr. Ward's Vegetable Anodyne Liniment, manufactured by J. R. Watkins, of Winona, Minnesota. I consider medicine made from this Dr. Wilson receipt as entirely unfit for internal use, and for such it was never recommended.
On a certain day of April, 1892, in the office of Justice Staley, in Charlottesville, Indiana, I was shown this Wilson formula with a certain "right" attached, which read as follows:
I hereby denounce in the most unmeasured terms every word of the above, including the signature, as a FRAUD and a FORGERY. (Meaning thereby and intending to convey the impression that these plaintiffs had unlawfully forged the written instrument above referred to as a "right," and meaning that these plaintiffs had forged the signature attached thereto.) It is not in my handwriting, nor did I ever authorize any one to write it for me. I also know that the name "Wilson's" in the formula has been changed to read "Ward's."
I take this opportunity to inform the patrons of DR. WARD'S VEGETABLE ANODYNE LINIMENT that I recognize J. R. WATKINS, OF WINONA, MINNESOTA, as my sole and only successor to all the rights I ever had in Ward's Celebrated Liniment; and that I have made over to said J. R. WATKINS, in due form, the WORLD-WIDE RIGHT to use my name as a TRADE-MARK in connection with a full line of medicines, and that I have never authorized any one else to so use my name.
I have no personal interest in making the above statement, except to further the ends of justice, and to keep the public from being imposed upon. (Meaning thereby that these plaintiffs were and are wrongfully and fraudulently deceiving and imposing upon the public in the course of their trade and business hereinabove referred to.)
Richard Ward
Signed in the presence of
W. R. McGraw,
B. F. Stinger,
Witnesses.
------
State of Indiana, |
> ss.
County of Hancock, |
Before me, a justice of the peace, personally appeared Richard Ward, who, being first duly sworn, acknowledged that he did voluntarily sign the foregoing document, and that every statement therein contained is true, to the best of his knowledge and belief.
In testimony whereof, I have hereunto set my hand and official seal, this seventh day of February, A. D. 1893. Sylvanus C. Staley [Seal.]
Justice of the Peace.
EXHIBIT B.
BEWARE OF COUNTERFEITS
And Base and Dangerous Imitations of our well-known
DR. WARD'S VEGETABLE ANODYNE LINIMENT.
I take this opportunity, with deep regret and in sheer self-defense, to expose to the public the actions of a certain firm hailing from the village of Plainview, where I formerly resided, and who claims the "right" to make and sell "Dr. Ward's Liniment" in the state of Minnesota. The fact has been known to all who reside in their neighborhood that for several years Landon & Burchard have been preying upon the well-earned reputation of our liniment. Finally the matter came before the court at Wabasha in November, 1891, when L. & B. were found guilty, and judgment given to us on common-law grounds. Also, they were left in for all costs and disbursements, which probably will aggregate but little less than $1,000. The court enjoins them from selling their liniment in bulk, or as "Hoffman's Anodyne," or in bottles with wrappers similar to ours, or substituting the same for our liniment, or in any way to deceive the public and make them believe they are getting goods of our manufacture. Further, the court finds that the formulas of the two medicines in question are not the same. I have a copy of their formula, and note, among other radical differences from our formula (which is private and undisclosed), one and one-half gallons of turpentine to the barrel of their liniment. This formula that L. & B. advertise as "genuine" was obtained by them through an old-time neighbor of Richard Ward, and is one discarded by him (Ward) about forty years ago. This man claims to have bought, in 1856, the formula and the right to use said Ward's name in connection with the manufacture and sale of this liniment in Minnesota for the magnificent sum of $5.00. However, please bear in mind that this matter is still in court, and, should the supreme court sustain our trade-mark, may yet prove a very serious matter.
Yours for fair and square dealing,
J. R. WATKINS,
Proprietor of Dr. Ward's Vegetable Anodyne Liniment.
Winona, Minn., February 15, 1892
EXHIBIT C.
DR. WARD'S
Registered Trade-Mark No. 23,585.
DR. WARD'S
Registered Trade-Mark No. 23,585.
CAUTION: Both of the above trade-marks have been registered in the United States patent office, at Washington, D. C. Any infringement will be promptly prosecuted in the U. S. courts. Take timely warning.
In the fourth cause of action, referred to in the opinion, plaintiffs in substance alleged that they had the right to make and sell Dr. Ward's Liniment throughout Minnesota; that certain described persons were regular customers of plaintiffs and habitually purchased from them large quantities of said liniment; that defendant with knowledge of said facts, intending to injure plaintiffs in their business and to deprive them of the profits thereof, etc., sent to said persons and others a certain notice (Exhibit C), intending and meaning thereby, etc., that defendant had the sole right to use the words "Dr. Ward's" in connection with the sale of liniments, or otherwise, within the United States, and that such words constituted a valid trade-mark belonging to defendant, and that any person keeping or selling liniment called "Dr. Ward's," which had not been made by defendant, would be prosecuted for infringement of trade-mark, whereas in fact defendant had never had the sole right, etc., and had never had a trade-mark composed of said words, all of which was well known to respondent and was unknown to the persons receiving...
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