Richter v. Reynolds, 21.

• Decision Date: 12 December 1893
• Docket Number: 21.
• Citation: 59 F. 577
• Parties: RICHTER v. REYNOLDS et al.
• Court: U.S. Court of Appeals — Third Circuit

59 F. 577

RICHTER v. REYNOLDS et al.

No. 21.

United States Court of Appeals, Third Circuit.

December 12, 1893

Before DALLAS, Circuit Judge, and BUTLER and GREEN, District Judges.

DALLAS Circuit Judge.

There are 17 assignments of error in this case. Only 2 of them relate to matters of fact, and by them it is alleged that the circuit court erred----

'In finding that complainant had made no sales in this country of medicinal compounds bearing the trade-mark in issue prior to the date of the opening of his New York branch house; and in finding that the complainant had not made sales in the United States, nor importations thereto, prior to his registration of 1885.'

What the court said is:

'The proofs show that the plaintiff's factory is at Rudolstadt, Germany, where his goods are and always have been manufactured, marked, labeled, and put up for the market. All the plaintiff's medical compounds, of which we have before us many specimens, are unmistakably German preparations, with printed labels, directions, etc., thereon in that language, although having also labels in English; and they are all distinctly marked 'Manufactured by F. Ad. Richter & Co.' The bill, it will be perceived, is quite indefinite as to the length of time the plaintiff had been engaged in the city of New York in the sale of his medicines before this suit was brought. Nor do his proofs certainly fix the date when his branch sales house was established in that city. It was undoubtedly after May 1, 1887, for Charles Bernhart Drugulin, who opened that house for the plaintiff, did not leave Rudolstadt until that date. Prior to that time the plaintiff had no establishment in the United States. Neither had he ever sold any of his medical compounds in this country before he opened his New York branch house. It is true there had been previously some importations, to a limited extent, into the United States, of the plaintiff's medicines, but by druggists and others who sent orders for the medicines to Rudolstadt, to supply persons who had lived in Europe, and there had used them.'

The record sustains this finding; and the other material facts are so well and fully presented by the learned judge of the court below that it would be superfluous to here detail them at length, especially in the absence of any specification respecting them.

The propositions affirmed by the remaining assignments, so far as they raise any question which it is necessary for us to consider, are that (1) the complainant had a common-law right to the word 'Anchor' as his trade-mark in this country; and, also, to the symbol of an anchor, irrespective of color and surroundings; (2) the complainant had, by registry in this country, a trade-mark consisting of the word 'Anchor' and the symbol of an anchor, irrespective of color and surroundings; and (3) by virtue of a certain treaty between Germany and the United States; the acquisition by complainant, as alleged, of a right to the trade-mark in issue in Germany, was also the acquisition of that right in the United States.

The first of these propositions cannot be maintained, in view of the opinion of this court delivered by the circuit justice during the present term, in the case of Manufacturing Co v. Beeshore, 59 F. 572. That opinion deals with the character of the use which is requisite to the acquisition of title to a trade-mark, and also with the effect of the registry of one device upon a claim made by the same person to a different device as a common-law trade-mark for use upon the same kind of goods. In that case the use shown was the sale of a few dozen bottles of a proprietary medicine, having written labels thereon which displayed the collocation of words which was claimed; and the registry in the patent office was of the words 'One Night Cure,' while those set up by the plaintiff, and to which he asserted a common-law title, were 'One Night Cough Cure.' This court said:

'Complaint is also made of the court below in holding that there was no sufficient evidence that the plaintiff had acquired a trade-mark in the collocation of words stated. It may be, as is argued by complainant's counsel, that the interference of a court of equity does not depend on the length of time the name has been used, and that the rule is that he who first adopts a trade-mark acquires the right to its exclusive use in connection with the particular class of merchandise to which its use had been applied. Nevertheless however short the time may be in which a person may acquire a title to a trade-mark, there must be shown an actual intention to acquire such a title. A merely casual use, interrupted, or for a brief period, would not support a claim to a trade-mark. Menendez v. Holt, 128 U.S. 514, 9 S.Ct. 143. Nor will a court of equity

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