Regis v. J.A. Jaynes & Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBRALEY
Citation185 Mass. 458,70 N.E. 480
PartiesREGIS et al. v. J. A. JAYNES & CO. et al.
Decision Date12 April 1904

185 Mass. 458
70 N.E. 480

REGIS et al.
v.
J. A. JAYNES & CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1904.


Case Reserved from Supreme Judicial Court, Suffolk County; Henry K. Braley, Judge.

Bill by Ellen M. Regis and another against J. A. Jaynes & Co. and others to enjoin an alleged infringement of said Regis' rights to the use of the word ‘Rex’ as a trade-mark or trade-name. On reservation from the Supreme Judicial Court. Decree for plaintiffs.


Edward S. Beach and Arthur [185 Mass. 459]P. Hardy, for complainants.

Robert F. Herrick, for defendants.


BRALEY, J.

When the plaintiff, Ellen M. Regis, first compounded her preparation in the form of pills, she marked on the boxes in which they were sold the word ‘Rex,’ from which her family surname was derived. She not only adopted and attached it as the distinctive feature indicative of the origin, identity, and proprietorship of her cure for dyspepsia, but filed it as a trade-mark, under St. 1895, p. 519, c. 462, § 1. No evidence appears that at any time she has abandoned or ceased to use it, but the contrary is true. She has formed a partnership with her son, and from small sales in its original form and within a circumscribed territory, other and more attractive combinations have been made, and the business has slowly increased in value and extended into larger fields. This is enough in the present case to establish an exclusive right of property in the plaintiffs to the device or name used in their business. Burt v. Tucker, 178 Mass. 493, 59 N. E. 1111,52 L. R. A. 112, 86 Am. St. Rep. 499;Lawrence Manufacturing Company v. Tennessee Manufacturing Company, 138 U. S. 537, 11 Sup. Ct. 396, 34 L. Ed. 997. It may be conceded that words which are merely descriptive [185 Mass. 460]of the style and quality of an article cannot be appropriated and used for this purpose by the manufacturer in the description of his wares to the exclusion of a similar use by others; but any words or devices that have for their principal object to make plain the identity of the owner with the specific goods prepared and sold by him are not so classed, but may constitute a valid trademark. Lawrence Manufacturing Co. v. Lowell Hosiery Co., 129 Mass. 325, 327,37 Am. Rep. 362;Frank v. Sleeper, 150 Mass. 583, 23 N. E. 213;Samuels v. Spitzer, 177 Mass. 226, 58 N. E. 693; Lawrence Mfg. Co. v. Tennessee Mfg. Co., supra;

[70 N.E. 481]

Columbian Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, 37 L. Ed. 1144. Although the subsequent origin of the mark or name used by the defendants on their cure for dyspepsia is not stated, it is found that it was not originally intended as an imitation of that of the plaintiffs, but may be considered as a fanciful term invented by the United Drug Company, and which was used to denote a particular proprietary medical compound put up and sold by it or its licensees. But if no intention to wrongfully injure the plaintiffs is manifested in the origin of ‘Rexall,’ this does not constitute a defense where priority of ownership and continuous use is shown of the device or mark of which it is found to be an imitation, and buyers are likely from the resemblance to be misled and purchase the defendants' cure when they desire to buy and believe they are getting the remedy made by the plaintiffs. Gilman v. Hunnewell, 122 Mass. 139; Burt v. Tucker, supra; North Cheshire & Manchester Brewery Co. v. Manchester Brewery Co. [1899] A. C. 83. A mere comparison of...

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23 practice notes
  • Wolf Bros. & Co. v. Hamilton-Brown Shoe Co., 3,758.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 20, 1913
    ...Mass. 245, 77 N.E. 774, is frequently cited on this proposition, but it seems to have been a case of technical statutory trade-mark (see 185 Mass. 458, 70 N.E. 480), and the mention of the rule in unfair competition a passing reference arguendo. In support of the reference the following cas......
  • Le Blume Import Co., Inc. v. Coty, 288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 18, 1923
    ...Baker (C.C.) 95 F. 135, Judge Lacombe held 'Uneeda' a proper trade-mark and infringed by the use of 'Iwanta.' In Regis v. Jaynes & Co., 185 Mass. 458, 70 N.E. 480, the plaintiff, who used the word 'Rex' as a trade-mark, was held entitled to restrain the defendant from using the word 'Rexall......
  • Jenney Mfg. Co. v. Leader Filling Stations Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 27, 1935
    ...over a wider territorial area than the defendant or used it in ignorance of the defendant's right to use it. Regis v. H. A. Jaynes & Co., 185 Mass. 458, 462, 70 N. E. 480. The trial judge states that the parties at the argument before him proceeded upon the theory, not that the word ‘Aero’ ......
  • Regis v. Jaynes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 7, 1906
    ...Mass. 253]Cunningh, for appellants.Arthur F. Hardy, for appellees.[191 Mass. 246]SHELDON, J. After the decision in this case reported in 185 Mass. 458, 70 N. E. 480, a decree was entered enjoining the defendants from using the words ‘Rex’ or ‘Rexall’ in connection with the sale of preparati......
  • Request a trial to view additional results
23 cases
  • Wolf Bros. & Co. v. Hamilton-Brown Shoe Co., 3,758.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 20, 1913
    ...Mass. 245, 77 N.E. 774, is frequently cited on this proposition, but it seems to have been a case of technical statutory trade-mark (see 185 Mass. 458, 70 N.E. 480), and the mention of the rule in unfair competition a passing reference arguendo. In support of the reference the following cas......
  • Le Blume Import Co., Inc. v. Coty, 288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 18, 1923
    ...Baker (C.C.) 95 F. 135, Judge Lacombe held 'Uneeda' a proper trade-mark and infringed by the use of 'Iwanta.' In Regis v. Jaynes & Co., 185 Mass. 458, 70 N.E. 480, the plaintiff, who used the word 'Rex' as a trade-mark, was held entitled to restrain the defendant from using the word 'Rexall......
  • Jenney Mfg. Co. v. Leader Filling Stations Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 27, 1935
    ...over a wider territorial area than the defendant or used it in ignorance of the defendant's right to use it. Regis v. H. A. Jaynes & Co., 185 Mass. 458, 462, 70 N. E. 480. The trial judge states that the parties at the argument before him proceeded upon the theory, not that the word ‘Aero’ ......
  • Regis v. Jaynes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 7, 1906
    ...Mass. 253]Cunningh, for appellants.Arthur F. Hardy, for appellees.[191 Mass. 246]SHELDON, J. After the decision in this case reported in 185 Mass. 458, 70 N. E. 480, a decree was entered enjoining the defendants from using the words ‘Rex’ or ‘Rexall’ in connection with the sale of preparati......
  • Request a trial to view additional results

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