Rogers v. Rogers

• Decision Date: 21 August 1885
• Citation: 53 Conn. 121,5 A. 675
• Court: Connecticut Supreme Court
• Parties: ROGERS and another v. ROGERS and others.

5 A. 675

53 Conn. 121

ROGERS and another

v. ROGERS and others.

Supreme Court of Errors of Connecticut.

August 21, 1885.

For majority opinion see 1 Atl. Rep. 807.

LOOMIS. J., (dissenting.)

The able argument in support of the majority opinion is so well calculated to produce the impression that the finding of the superior court leaves no possible basis for granting any relief to the plaintiff, that it will be necessary to examine the pleadings and finding somewhat carefully, to show the grounds for my dissent. If we exclude from paragraphs 11 to 16 of the complaint all allegations of fraudulent designs and acts, there will remain the averments that the plaintiff is a corporation, duly organized under the laws of this state; and that since 1859 it has been and now is extensively engaged in the manufacture of silver-plated spoons, forks, and knives, and has large capital invested in that business; that in 1858 Asa H. and Simeon S. Rogers formed a partnership under the name of "Rogers & Brother," and engaged in the business of manufacturing and selling silver-plated spoons and forks and knives, which was continued till December 18, 1859, when the plaintiff corporation was organized and purchased the property, and succeeded to the business and all the rights of the partnership; that said partnership had adopted and used in its business the trade-mark "* Rogers & Bro.," sometimes adding the suffix "A 1,"—stamping it upon the goods manufactured by said firm; and that the plaintiff upon succeeding to the business of said partnership, lawfully continued to use, and has ever since lawfully used, and intends in the future to use, in its business said trade-mark with said suffix, stamping the same upon the spoons, forks, and knives manufactured by it; that the sale of the plaintiff's goods so stamped has been widely extended, and that, owing to the skill and integrity of the plaintiff in their manufacture, they have constantly maintained a special, peculiar, good, and valuable reputation among the trade, and among purchasers generally; and that the business of the plaintiff has been largely built up and extended by such reputation, and is now largely dependent for its profitable continuance upon the reputation so attached to its goods by the use of such stamp thereon; that said trade-mark is of great value to the plaintiff, and will continue to be so if the wrongful acts of the defendants shall be stopped; that the defendants, well knowing the premises, and knowing that if they could send spoons, forks, and knives into market, bearing a stamp that would cause them to be called "Rogers goods," or by any of the names whereof the word "Rogers," is the specially conspicuous part, they could sell them much more readily and for a higher price than if the stamp did not contain the word "Rogers;" and intending to cause their goods to be called by some name of which the word "Rogers" forms the conspicuous part, and so obtain advantage of the reputation which attaches to goods bearing the plaintiff's trade-mark "* Rogers & Bro. A 1," did, on or about the fifteenth day of June, 1883, begin the business of making and selling silver-plated spoons, forks, and knives, and stamping upon them marks resembling said trade-marks of the plaintiff, and in particular the following, to-wit: "C. Rogers & Bros. A 1," and to send into the market and sell spoons, forks, and knives so stamped, and have ever since continued so to do; that by reason of said facts the use by defendants of the word "Rogers" as a stamp upon spoons, forks, and knives will cause unwary purchasers to purchase the goods of the defendants so stamped, supposing them to be manufactured by the plaintiff, to the injury of the plaintiff; and that the plaintiff, on August 1, 1883, requested the defendants to cease using the stamp aforesaid, but they then refused and still refuse.

Of the material allegations stated above the defendants admit that in 1858 Asa H. and Simeon S. Rogers formed a partnership under the name of "Rogers & Brother," and under that name engaged in the manufacture of silver-plated ware; that in 1859 the plaintiff corporation was organized under the name of "Rogers & Brother," purchased the property of the copartnership, and succeeded to its business, and has ever since been engaged in the manufacture of silver-plated spoons, forks, and knives, and has a large amount of capital engaged in the business; and that the partnership, "Rogers & Brother," during its existence, stamped the goods of its manufacture with the name of said copartnership, either in full or in the abbreviated form of "Rogers & Bro.," and that the plaintiff corporation has, since it engaged in the business, stamped the goods of its manufacture with its corporate name, either in full or abbreviated, and that said copartnership and corporation sometimes added to their mark "A 1." They also admit the use of the star, and that the plaintiff's goods while so stamped have had a good and valuable reputation in the public markets.

The defendants aver that they have been extensively engaged in business as manufacturers and sellers under their partnership name of "C. Rogers & Bros." since 1866,—their manufacture being principally that of silver-plated coffin-trimmings; and that in that business their partnership name has acquired a high reputation, and been of great value to them. And in reply to paragraphs 11 to 16 of the complaint, they aver that they have been engaged in, and are intending to carry on, in connection with their other silver-plated manufacture, the manufacture and sale of electro-silver-plated spoons, forks, and knives, and have made a large investment therein, and that they have stamped upon the articles so manufactured their partnership name for the sole purpose of indicating that such articles are manufactured by them, and of availing themselves of the reputation which they (the defendants) have acquired in the public markets as before mentioned. This the defendants insist they have a lawful right to do, and that the doing thereof can afford no lawful ground of complaint to the plaintiff.

The court finds (among other things) that when the plaintiff corporation was formed in 1859, both members of the partnership formed in 1858 (Asa H. and Simeon S. Rogers) were associates in such formation, and became stockholders and officers in such corporation, and that the corporation so formed "acquired by purchase all the property and business of said firm, including its said stamp and good will, and has ever since used said stamp in its business, always stamping the same upon the back of the shank of the forks and spoons, and that the use of said stamp was never objected to by any of said brothers; that the goods made by the plaintiff, and stamped as aforesaid, have always been equal to or better than the goods made by said three Rogers brothers, and have always had a high reputation in the market; that the standard of quality has not only been maintained, but the amount of silver put upon the goods has been increased from time to time, and the quantity of silver now used by the plaintiff is 25 per cent. in excess of that used by Rogers Brothers; that the plaintiff has also from time to time made improvements in the style and workmanship of the goods, and has greatly improved the quality of its spoons by thickening the shanks; that the reputation of the plaintiff's goods is very much higher than was that of the goods made by said partnership; and that the plaintiff's knives, forks, and spoons are of a quality much superior to those made by said partnership, or by any other party prior to the organization of the plaintiff; that said stamp of the plaintiff has never been used except upon first quality goods, and the use of the same has been and is of great value to the plaintiff; that prior to the acts complained of the spoons, knives, and forks dealt in by the defendants were wholly of the manufacture of other parties than themselves, except as they were at one time connected with Charles Parker, under an arrangement which appears in the case of Meriden Britannia Co. v. Parker, 39 Conn. 450; that the defendants have never stamped any of their goods with any mark, name, or trademark except as the spoons, forks, and knives made by them recently have been stamped as herein stated; and that their stamp "C. Rogers & Bros. A 1" is stamped upon the backs of the spoons and forks in the same manner and place as the plaintiff's goods are and have been stamped.

The majority of the court, in their opinion, after referring to various uses of the name "Rogers" by one or other of the brothers, most of which have been abandoned for many years, and which do not seem to have any material bearing upon any question in this case, say:

"Thus...