Moxie Nerve Food Co. v. Baumbach

• Decision Date: 11 July 1887
• Parties: MOXIE NERVE FOOD CO. v. BAUMBACH and others.
• Court: U.S. District Court — Eastern District of Texas

32 F. 205

MOXIE NERVE FOOD CO. v. BAUMBACH and others.

United States Circuit Court, E.D. Texas.

July 11, 1887

Scott &amp Levi, opposed.

SABIN J.

In this case it would appear that Augustin Thompson, M.D., early in 1885, manufactured a beverage called by him 'Moxie Nerve Food,' and, deeming it of great value commercially, filed with the United States commissioner of patents an application for a trade-mark therefor on the sixteenth day of July, 1885 and which was afterwards registered in the patent-office, September 8, 1885, and from which it appears that such trade-mark had only been in use since April 1, 1885; the term 'Moxie,' being the trade-mark word while the label included a picture and other descriptive words. Thompson sold this trade-mark to complainant in July,1885, and complainant has used the same as its trade-mark and label ever since. It also used the champagne bottle wrapped in a peculiar light-brown paper, with the words 'Moxie Nerve Food' printed prominently thereon, as stated in the bill of complaint. It was in the full and undisputed use of its label, champagne bottle for its package, for quite a time, and the light brown wrapper, with words 'Double Extract' or 'Single Extract,' as the case might be, of 'Moxie Nerve Food,' in prominent print thereon. It became quite popular and extensively used as an article of commerce under the head or class of 'Beverages,' and was generally known as 'Moxie' or 'Moxie Nerve Food.' Its demand by the public was difficult to supply continuously in the same class of bottle; and it so happens that Dr. Thompson, the general manager of plaintiff, while he had used the common champagne bottle in making up his own and the complainant's packages, thereafter, having intended to put the same up in a different kind of bottle, with the words 'Moxie Nerve Food' blown therein, had actually used such bottles in the business of plaintiff; but, being cautioned as to its effect upon plaintiff's trade-mark package, he desisted from so doing, and has since continued using solely the champagne bottle. The trade-mark asserts 'that the Moxie nerve food contains not a drop of medicine, poison, stimulant, or alcohol, but is a simple sugar-cane like plant, grown near the equator and farther south; was lately accidentally discovered by Lieut. Moxie; and has proved itself to be the only harmless and effective nerve food known that can recover brain and nerve exhaustion,' etc.

Shortly after the Moxie Nerve-Food Company got under full headway, quite a number of persons or nerve-food companies sprang up, claiming to manufacture or sell nerve-food beverages, and all manufacturing a beverage of the same or very similar taste, flavor, and odor to that of complainant; and as early as the fall of 1886 the defendant Baumbach and the Star Bottling Works, a corporation mainly belonging to him, were found manufacturing a preparation thus similar to complainants, and similarly put up in a champagne bottle, with the label and wrapper closely enough resembling the label or trade-mark and wrapper of plaintiff to deceive the ordinary public, and calling the same 'Standard Nerve Good,' and having the words, 'Genuine. Beach and Claridge,' written across the label. Such is the imitation of the Moxie nerve-food label, package, and wrapper that it is and was well calculated to deceive the general public, and impose upon the unwary, and derive advantage from the prestige of the Moxie nerve food, and such undoubtedly was the design in framing its label, and adopting the bottle and words 'Nerve Food' thereon, and theretofore used by complainants in the manufacture and sale of its beverage. The words 'Nerve Food' had never before been used upon beverages. It had been used very limitedly, indeed, upon some medicines put up in small bottles, and not widely known; but still as a medicine the words 'Nerve Food' had been used. The fluid or beverage, or preparation therefor, offered by defendants, is not enjoined. It is not objected to by complainant that defendants may put up a preparation like its own, or otherwise. But complainant does object, however, and desires to have enjoined, the putting up a fluid preparation as a beverage resembling its own in flavor, taste, and color, in packages, wrappers, and labels or trade-marks like its own, or in such similitude as to lead the public to believe that they were buying the 'Moxie Nerve Food,' when in truth and in fact they were buying a preparation known as 'Standard Nerve Food,' and the contention is whether defendants have such right.

The complainant applied for and obtained an injunction, February 17, 1887, which was thereafter continued by the court, wherein it was ordered, adjudged, and decreed that the defendants, and each of them-- that is to say, August Baumbach and the Star Bottling Works, a corporation under the laws of Texas,--their and each of their servants, agents, attorneys, and employes, and all others confederating with them be, and the same are and each of them is hereby, restrained and enjoined from in any manner simulating the trade-mark or label of complainant specified as Exhibit A in its bill of complaint, or using the same, and particularly the one specified in said bill of complainant as Exhibit B, upon any bottle or package of fluid manufactured resembling in taste, flavor, or appearance the article of Moxie nerve food manufactured and sold by complainant under said trade-mark or label marked Exhibit A, as aforesaid; and likewise from putting upon the market for sale, or using for making into packages or otherwise bottles, one or more of the style of champagne bottles in use by complainant, when such similar bottles contain a fluid resembling that manufactured and sold by complainant as Moxie nerve food in taste, flavor, or appearance; and likewise from using the words 'Nerve Food,' either alone or with other words, upon the outside or upon the wrapper of any package containing the manufacture of a fluid resembling in taste, flavor, or appearance the article manufactured by complainants as 'Moxie Nerve Food.'

It will be observed that the injunction did not in point of fact restrain defendants from manufacturing or selling the fluid preparation manufactured by them or any other. It did not restrain them from manufacturing or selling the same identical preparation as that manufactured and sold by complainant, nor does it now, but it restrains them from using the methods of complainant in presenting his preparation to the public for sale, or simulating the same so far as his trade-mark or label, champagne bottle, or wrapper, with the words 'Nerve Good' thereon, is concerned. But it is now claimed by the defendants that the injunction ought to be dissolved because the plaintiff is not a corporation in point of fact, and because there never was such a person as Lieut. Moxie, and that the preparation of plaintiff contains alcohol, and is not manufactured from a sugar-cane like plant which grows near the equator and further south, and that the representations in reference to the same in the label are false, and calculated to mislead the public, and hence plaintiff ought not to be able to maintain this suit, or to have an injunction herein.

Either of the above objections, if well founded, would entitle the defendant herein to have the injunction dissolved.

The laws of Maine (chapter 48, Rev. St. 1883, Sec. 16) provide that 'three or more persons may associate themselves together by written articles of agreement, for the purpose of forming a corporation to carry on any lawful business including corporations for manufacturing,' etc. Sections 17 and 18 provide for the first meeting and other matters for the bringing of a corporation into actual existence. All the corporators were residents of the state of Massachusetts, and so signed themselves; one being a resident of Boston, Massachusetts, and the remaining seven of Lowell, Massachusetts, there being in all eight incorporators. The location of the corporation was at Portland, Cumberland county, in the state of Maine. John L. Hunt is stated as president, George A. Byam as treasurer, and John L. Hunt is stated as president, George A. Byam as treasurer, and John L. Hunt, Augustin Thompson, and George A. Byam are specified as directors, to whom the necessary oath was administered by M. L. GIBSON, justice of the peace; and on July 13, A.D. 1885, the attorney general, at his office in the state of Maine, 'certifies that he has signed, and is conformable to the constitution and laws,' and which certificate is signed 'ORVILLE D. BAKER, Attorney General.' The certificate of incorporation so certified by the attorney general was recorded in the registry of deeds of Cumberland county, Maine, July 14, 1885, and was filed in the office of the secretary of state of Maine, July 22, 1885, and recorded volume 9, p. 11. Section 19 of the law above referred to, of the state of Maine, provides that, 'From the time of filing such certificate in the secretary of state's office, the signers of said articles, and their successors and assigns, shall be a corporation, the same as if incorporated by a special act, with all the rights and powers, and subject to all the duties, obligations, and liabilities, provided by this chapter, and chapter 46. The certificate of corporation was filed by residents of Massachusetts, and so stating themselves to be, as required by law. Was it a corporation when so filed? That is the question; and I but follow the laws of Maine in declaring that, 'from the time of filing such certificate in the secretary of state's office, the signers thereof were a corporation, and could sue and be sued by such corporate name. The name of such corporation was 'Moxie Nerve-food Company.' 'The purposes of said...