A.N. Chamberlain Med. Co. v. H.A. Chamberlain Med. Co.

• Decision Date: 29 January 1909
• Docket Number: No. 6,258.,6,258.
• Citation: 86 N.E. 1025,43 Ind.App. 213
• Parties: A. N. CHAMBERLAIN MEDICINE CO. v. H. A. CHAMBERLAIN MEDICINE CO.
• Court: Indiana Appellate Court

43 Ind.App. 213

86 N.E. 1025

A. N. CHAMBERLAIN MEDICINE CO.

v.H. A. CHAMBERLAIN MEDICINE CO.

No. 6,258.

Appellate Court of Indiana, Division No. 1.

Jan. 29, 1909.

Appeal from Circuit Court, Elkhart County; James S. Dodge, Judge.

Suit by the A. N. Chamberlain Medicine Company against the H. A. Chamberlain Medicine Company. From a judgment for defendant, plaintiff appealed. Affirmed.

Otto E. Deahl and Vanfleet & Vanfleet, for appellant. James L. Harman, for appellee.

HADLEY, J.

This is a suit for an injunction by appellant against appellee because of an alleged unfair competition and infringement of the trade-name “A. N. Chamberlain's Immediate Relief.” It is sought to restrain H. A. Chamberlain Medicine Company from using the words “Chamberlain” and “Medicine” in its corporate name, and from using the words “Chamberlain” and “Relief” in the name of its medicine: “H. A. Chamberlain's Infallible Relief.” There is a further prayer for $1,000 damages. An answer in two paragraphs, the second alleging that the appellant, prior to and during the pendency of a former action between the parties, used obscene literature in its advertising matter, and falsely advertised and represented its medicine to be a cure for divers and incongruous diseases, was filed, and the issues were closed by a reply in general denial. The cause was tried by the court, and a judgment rendered for the defendant, from which this appeal is taken.

It appears that A. N. Chamberlain of Elkhart, Ind., in 1850, being the owner of a secret formula for compounding a medicine of certain drugs, began to manufacture and sell such medicine under the name of “A. N. Chamberlain's Immediate Relief.” In 1891 a corporation was formed in Elkhart, Ind., to make and sell the medicine, and A. N. Chamberlain transferred thereto all the right, title, and interest in the medicine, and has since continued to manufacture and sell the same. Mr. Harvey A. Chamberlain, of Elkhart, whose father was a cousin of A. N. Chamberlain, in 1902 assisted in organizing the “H. A. Chamberlain's Medicine Company,” to manufacture a medicine from a formula which he owned, and which had been discovered by his father. It is shown by the uncontradicted evidence that appellant's medicine, known as “Chamberlain's Immediate Relief,” was widely advertised and represented to the public as being a certain and effectual cure for the following divers diseases: “Eczema or yellow fever, Asiatic cholera in its first stages, or chilblains, catarrh or seasickness, diphtheria or pimples, cholera morbus or bee stings, bites of poisonous reptiles or piles, dysentery or scratches on horses, scarlet fever or sour stomach, measles or cramps, neuralgia or general debility, hysterics or hog cholera, la grippe or bloat and scours in horses, cattle and sheep, diarrhœa or itching and eruptions, bilious fever or wind galls on horses, bloody flux or sick headache, fever and ague or heaves in horses, colic or toothache, spotted fever or nervous tremors, sore throat or chicken cholera, cold feet or scalds and burns, rheumatism or earache, dumb ague or cuts and bruises, colds or summer complaint, coughs or colic in man or beast, griping pains or nervous headache, sprains and wounds or diseases of young lambs”-all from one and the same bottle. We have exhibited the diseases, for which appellant claims its medicine to be a panacea, in the above form in order to show at a casual glance the absurd incongruity of its representations, and thereby illustrating the character of the business that appellant is praying a court of equity to protect. It will be seen that this medicine is claimed to be a sovereign remedy for about all of the ills that flesh is heir to; and, if appellant's said representations are to be believed, and they are certainly made for this purpose, then, as is well said in Fetridge v. Wells, 13 How. Prac. (N. Y.) 385: “It would seem that so long as this medicine may be procured it will be a folly to grow old and a mistake to die.”

There is another phase of appellant's advertisements we cannot overlook. It not only recommends its medicine as a cure for diphtheria, along with other diseases, but emphasizes this recommendation with a separate line: “This sure cure for diphtheria for sale by all druggists.” And advises, by what purports to be testimonials, that doctor bills as well as lives can be saved by using this specific in cases of diphtheria. This wanton advice, with reference to this...