Lund v. Smith
| Decision Date | 16 May 1906 |
| Citation | 77 N.E. 893,191 Mass. 473 |
| Parties | LUND v. SMITH et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Guy Cunningham and Jos. W. Lund, for plaintiff.
Wm. E Hutchins and H. I. Cummings, for defendants.
This is an action on an account annexed, brought by the trustee in bankruptcy of Pettingill & Co., a corporation engaged in the business of an advertising agency, to recover a balance alleged to be due the bankrupt for advertising. The defendants, who are the members of a firm engaged in the business of dealing in liquors at wholesale, under the name of Thomas L. Smith & Sons, filed an answer seeking to recoup damages sustained by them, and a declaration in setoff The case was heard by a judge of the superior court, sitting without a jury. He found certain facts and also found for the plaintiff for the full amount claimed, and reported the case for the determination of this court. No question is made but that the amount sued for is correct, and the only point raised is as to the validity of the defense. The following facts appear from the report of the judge:
In August, 1903, one Bell, who was an agent of Pettingill & Co. and was unknown to the defendants, came to their place of business, was introduced to them by a person whom they knew, and sought to interest them in a proposition that they should get up a bottled whisky for the market, which Pettingill & Co., would advertise for them. The matter was discussed in a general way, but no definite proposition was made at that time. Subsequently Bell called again, and the subject was more fully gone into, including the cost and amount of advertising and the name to be adopted for the whisky. Then came up the question of a label. Bell said, Some time afterward Bell brought to the defendants several sketches of labels, and after discussion the defendants selected one of them which bore the name 'Golden Horn.' One of the defendants testified that, during the numerous interviews between Bell and the defendants up to the time this name was selected, Bell stated that his proposition was that Pettingill & Co. should furnish the label, do the advertising, and take charge of getting the name before the public; that the defendants were to do nothing except produce and bottle the whisky, keep up the grade, put it on the market in good order, and make the sales, all else was to be looked after by Pettingill & Co.; but it appeared by other testimony of the defendants that the defendants in fact were to register the trade-name and that they actually picked out the label from those furnished by Bell and did some advertising on their own account, and did other matters. During the numerous preliminary interviews Bell, in consultation with and with the consent of the defendants, shaped the plan to be followed, and suggested various details, such as having the bottles registered a full quart, having the grade a little better than other well known brands on the market, and he selected the blend to be used, which was one out of several made up by the defendants for his opinion. The name Golden Horn was selected from the others because one of the defendants and Bell liked it best, and Bell thought that the motto which he had attached to it, 'Blow yourself on Golden Horn,' would be a great catchword. He stated to the defendants that he did not want to go into it or to have them go into it unless they thought that there was to be a large field for it; that he contemplated covering the entire country; and that if they would keep the standard up to the samples they had shown him, there was no question but that they could cover the entire country eventually with this whisky. Bell made no specific representations as to the validity of the name Golden Horn. The question of availability and whether its use had been appropriated by any other person, so that the defendants could not legally use it, was not raised, and, so far as appears, neither the defendants nor Bell knew of its use by any other person.
It further appeared that the defendants were to attend to the registration of the name as a trade-mark in Washington; that they undertook to do that themselves; and that they registered it as a label instead of as a trade-mark. Soon after a certificate of such registration was received from the Patent Office.
Immediately after the receipt of this document, the defendants began the printing of labels, etc., and the active work of putting the whisky on the market, in good faith and fully supposing that they were the only persons who had the right to use the name and Pettingill & Co. began to advertise the whisky throughout New England, the names of the papers in which the advertisements were inserted and the dates of a part of such insertions being set out in the declaration. While they were marketing the whisky under this name, at some time in January, 1904, they learned that there was a private concern in Chicago which made a business of advertising trade-names and the like, and ran a bureau in which such names were collected and through which information concerning them was given to its customers, and they sent the name to this concern for registration. This firm immediately, about January, 1904, informed...
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