McVey v. Brendel

• Decision Date: 05 October 1891
• Docket Number: 360
• Citation: 22 A. 912,144 Pa. 235
• Parties: JOSEPH McVEY ET AL. v. JOHN H. BRENDEL
• Court: Pennsylvania Supreme Court

22 A. 912

144 Pa. 235

JOSEPH McVEY ET AL. v. JOHN H. BRENDEL

No. 360

Supreme Court of Pennsylvania

October 5, 1891

Argued May 20, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.

No. 360 January Term 1891, Sup. Ct.; court below, Equity Docket No 2, page 326 C.P.

On June 16, 1888, Joseph McVey, president, and D. S. Hicks, Frank Gastiger and H. Brownstetter, trustees of the Cigar Makers' Union, No. 126, of Ephrata, Pa., filed a bill in equity for themselves and for all other members of the Cigar Makers' International Union of America, against John H Brendel, praying for an injunction to restrain the defendant from using, upon boxes of cigars to be sold by him, certain labels charged to have been made in imitation of labels issued by the Cigar Makers' International Union of America, and from disposing of such counterfeit labels, or the plates from which they were made, otherwise than by their destruction. A preliminary injunction was awarded, and after argument was dissolved.

After answer by the defendant and replication, the cause was referred to Mr. E. D. North, as master, by whom the following facts were found:

The plaintiffs are cigar makers and members of the Cigar Makers' Union, No. 126, of Ephrata, Lancaster county Pa., and are respectively president and trustees of said union. Said union is connected with and acknowledges the jurisdiction and control of the Cigar Makers' International Union of America, and they complain for themselves and for all the other members of the said Cigar Makers' International Union of America, numbering many thousands.

Said union is a voluntary unincorporated association of practical cigar-makers, formed for the purpose of promoting the mental, moral, and physical welfare of its members, by assisting them to obtain labor at remunerative prices, by affording them pecuniary aid in sickness, and to maintain a high standard of workmanship and fair wages as cigar-makers. For the purpose of designating the articles manufactured by members of the union, the latter, in convention assembled in 1880, devised and adopted a trade-mark or label to which they gave the name of "Union Label," a fac-simile of which label is attached to plaintiffs' bill and made a part thereof.

The following is a copy of the said "Union Label:"

Issued by Authority of the Cigarmakers' International Union of America.

UNION-MADE CIGARS.

This Certifies that Cigars contained in this box have been made by a First-Class Workman, a member of the Cigarmakers' International Union of America, an organization opposed to inferior Rat-shop, Cooly, Prison, or Filthy Tenement House Workmanship. Therefore we recommend these Cigars to all smokers throughout the world. All infringements upon this Label will be punished according to law.

A. STRASSER, President, C.M.I.U.

LOCAL

STAMP.

SEAL

Prior to the adoption of the said union label by said Cigar Makers' International Union, the same had not been known or used in this country or elsewhere, and ever since said adoption the members of said union have been and are now entitled to the exclusive use of said union labels, and the same have been pasted conspicuously on the outside of all boxes containing cigars made by the plaintiffs and all the other members of the said union.

The said union label affixed to cigar boxes is intended as a guaranty that the cigars therein contained are manufactured by members of the said union; that fair wages and good workmanship have been thereby secured, and that the cigars were not made in prisons or filthy tenement houses, and by inferior workmanship; and for those reasons the same command a higher price in the market than cigars of a similar appearance, but without said union label; and the use of said union label is a source of great profit to the plaintiffs and the other members of said union.

John H. Brendel, the defendant, is a manufacturer of cigars in Brecknock township, Lancaster county, Pennsylvania, and his shop is a strict union shop, and has been connected with the Cigar Makers' Union, No. 126, of Ephrata, continuously since some time in the year 1887, it having withdrawn from the union in 1887, and entered it again the same year. The defendant never was a member of the union, but he employed twelve hands in his shop, most of the time, who were members of the Cigar Makers' Union, No. 126, of Ephrata, which consists of about eighty members; and at the time the plaintiffs' bill was filed, he had about ten or eleven men employed in his shop, each of whom would make, on an average, about two thousand cigars per week, which were packed in boxes, some of which contained fifty cigars each and some of which contained twenty-five cigars each.

In accordance with article XI., § 3, of the constitution of the Cigar Makers' International Union of America, the defendant's shop was entitled to receive from the said local union, the Cigar Makers' Union, No. 126, of Ephrata, free of all charges, as many of these union labels as might be required from week to week for all cigars actually made by members of the union in his shop.

Since the defendant's shop re-entered the union in 1887, and up to the time of filing the plaintiffs' bill, the said local union furnished to the defendant all union labels that he or his shop collector asked for or demanded from time to time; and the said local union did not, nor did the proper officer thereof, nor the proper parties of whom demand was made, refuse to furnish to the defendant all the union labels that he or his shop collector demanded.

Shortly before the first day of June, 1888, the defendant gave to Charles S. Yeager, a printer in Ephrata, a label of the same kind as the one attached to the plaintiffs' original bill, and instructed him to have made therefrom plates for the printing of said label. In pursuance of said instructions, Mr. Yeager had the plates made, and printed therefrom and sent to the defendant the proof of the said label, whereupon the defendant gave him an order for twenty-nine thousand of the said labels; and in pursuance of said order, Mr. Yeager printed for the defendant, from the said plates, twenty-nine thousand of the said labels, two thousand of which he sent to the defendant by mail about the first day of June, 1888, and the remaining twenty-seven thousand he delivered to the defendant personally, on or about the eighth day of June, 1888, together with the plates from which the said labels were printed.

These labels which Mr. Yeager printed for the defendant so closely imitate and resemble the genuine union label used by the plaintiffs, in the shape, size, and color of the paper, in the kind, size, arrangement and juxtaposition of the type, in the seal of the Cigar Makers' International Union of America and its relative position on the paper, in the signature of the president of the said international union, in the space left for the local stamp and its position on the paper, in the color of the ink used, in the character of the border surrounding the printed matter, and in general appearance, that they are well calculated to deceive, and would, if used, deceive and mislead the public into the belief that the cigars bearing the said counterfeit label were manufactured by members of the aforesaid union.

The said defendant intended to buy cigars from other factories in the vicinity where he lived, and to paste these counterfeit labels on the boxes containing those cigars; that is to say, on boxes containing cigars not made in his shop, nor by members of the said union, and he intended to sell the said cigars for union-made cigars, and thus to infringe the exclusive rights of the plaintiffs, and the other members of said union, to the use of the said union label.

The Cigar Makers' Union, No. 126, of Ephrata, did not, as a union, at the time of filing this bill, or at any time before, own, manufacture, trade in, or sell any cigars. The members of the Cigar Makers' Union, No. 126, of Ephrata, did not, at the time of filing this bill, buy or sell any cigars, but they were practical cigar-makers and made cigars; and this union label had been used on cigars made by the members of said local union, and the cigars made by them were sold by others with these union labels on them.

This union label is sometimes used by members of the Cigar Makers' International Union, of America, on cigars manufactured by them and sold by them, and it has been used on cigars manufactured by the members of the said union, and sold in the market since the adoption of said label by the said union in 1880. Some of the members of the Cigar Makers' International Union of America did, at the time of filing this bill, or before, manufacture and sell cigars.

The defendant had no authority from the union to have these labels printed. All the members of the said union, including the plaintiffs herein, have a common valuable pecuniary interest, right or property, in the union labels in question, or in the use thereof, or in both combined, which is entitled to protection in a court of equity, and the plaintiffs and the other members of the union will suffer irreparable injury if an injunction be not granted as prayed for.

Upon the facts so found by him, the master, citing and considering: (1) High on Injunctions, § 748; Beatty v. Kurtz, 2 Pet. 584; Smith v. Swormstedt, 16 How. 288; Snow v. Wheeler, 113 Mass. 179; Birmingham v. Gallagher, 112 Mass. 190; Allen v McCarthy, 37 Minn. 349; Equity Rules, § 22: (2) Amoskeag Mfg. Co. v. Trainer, 101 U.S. 53; Del. & H. Can. Co. v. Clark, 13 Wall. 311; 3 Pomeroy's Eq. J., § 1354; Farina v. Silverlock, 6 DeG. M. & G. 214; High on Injunctions, §§ 675, 677, 678; Hostetter v. Vowinkle, 1 Dill. C.C. 329; Palmer v. Harris, 60 Pa. 156; ...