Manitowoc Pea-Packing Co. v. William Numsen & Sons

• Decision Date: 11 April 1899
• Docket Number: 573.
• Citation: 93 F. 196
• Parties: MANITOWOC PEA-PACKING CO. v. WILLIAM NUMSEN & SONS.
• Court: U.S. Court of Appeals — Seventh Circuit

93 F. 196

MANITOWOC PEA-PACKING CO. v. WILLIAM NUMSEN & SONS.

No. 573.

United States Court of Appeals, Seventh Circuit.

April 11, 1899

C. K Offield, for appellant.

E. H Bottum, for appellee.

Before WOODS and GROSSCUP, Circuit Judges, and SEAMAN, District Judge.

WOODS Circuit Judge.

This appeal is from an interlocutory order restraining the appellant, the Manitowoc Pea-Packing Company, pending the suit, 'from using, as a trade-mark or brand, upon any canned or packed peas or other vegetables or fruits, the word 'Clipper,' or the words 'Clipper Brand,' whether in connection with, or without, the use of the words 'City' or 'Clipper City'; and from using as a trade-mark, label, designation, or print, upon any label or wrapper attached to any such goods, or upon any package of such goods, any of the words hereby restrained from use, or the delineation or representation of a ship or clipper under full sail, or in imitation or similitude thereof, until the further order of the court. ' Judge Jenkins, when granting this order, made the following statement of the reasons for his decision:

'I assume, upon the evidence presented, that the adoption by the defendant of the representation of a clipper ship under full sail, and of the words 'Clipper' and 'Clipper City Brand,' were adopted by it in ignorance of the prior adoption of the words 'Clipper Brand,' and of the representation of a clipper ship under full sail, by the complainant; although, considering their long use by the complainant, and the sale of its goods bearing those marks throughout many states of the Union, and the diligent search which the defendant insists it made before their adoption to ascertain if they infringed on any other's rights, and the placing of a ship under full sail in the mouth of the harbor, as it appears upon the picture, out of all proportion to the rest of the print, render the coincidence of the adoption of both the ship and the name by the defendant as somewhat remarkable. It is none the less true, however, that the adoption of these designations tends to create confusion and to induce the public, particularly customers of retail dealers, to purchase the goods of the defendant as and for the goods of the complainant; and, however innocent the defendant may be of intentional simulation of the complainant's brand, the equitable principles which underlie the question of fair trade, and by which courts of equity are...