Rogers v. Rogers

• Decision Date: 30 October 1885
• Citation: 1 A. 807,53 Conn. 121
• Court: Connecticut Supreme Court
• Parties: ROGERS and another v. ROGERS and others.

1 A. 807

53 Conn. 121

ROGERS and another

v. ROGERS and others.

SUPREME COURT OF CONNECTICUT.

Filed October 30, 1885.

O. H. & J. P. Platt and Chamberlin, White & Mills, for plaintiffs.

C. E. Ingersoll, C. E. Mitchell, and George A. Fay, for defendants.

STODDARD, J. As we understand the findings and rulings of the superior court, practically the only question left for the determination of this court is in respect to the plaintiffs' exclusive right, as against these defendants, to stamp the word "Rogers "upon silver-plated flatware,—such as knives, forks, spoons, etc. In considering this subject, it must constantly be borne in mind that all questions of fact are finally disposed of by the superior court, and that this court cannot, even by inference, supplement such finding, or supply omitted facts. Under our practice, this court is controlled by the finding as it comes to us. The case stands upon an answer denying the material allegations of the complaint, and in so far as the superior court omitted to find true the allegations and claims of the plaintiffs, those allegations and claims must be regarded as not proved. The defendants stamped upon the shanks of spoons and forks manufactured by them the combination of words "C. Rogers & Bros. Al." The plaintiffs' stamp is "* Rogers & Bro. Al." The finding states in detail the use by several different partnerships or corporations of stamps all bearing the common and distinctive word "Rogers," and differing from each other in all other material respects, except in the use of this common and conspicuous word "Rogers," one concern using a stamp with the word "Rogers" alone. The finding then proceeds: "By reason of the numerous stamps on spoons, forks, and knives, containing the word 'Rogers,' as before mentioned, and of the efforts of the various concerns who have used such stamps since 1847 to promote the sale of their goods as 'Rogers' goods,' the word 'Rogers' has become the conspicuous and familiar part of such stamps with a large class of retail buyers; and while jobbers and dealers, and those retail buyers who are informed of the facts, readily distinguish between the stamps of the different manufactories by the word or symbols which such stamps do not possess in common, those retail buyers of the articles who buy by the stamps or the single article look only to the word 'Rogers,' and are for this reason liable to confound the various stamps; but generally the retail buyers who desire any information on the subject of the make of the goods rely upon the dealer for such information."

It appears from the extract that there are two governing facts: First, that the word "Rogers" is the conspicuous, familiar, material, and valuable thing in the various so-called trade-marks; second, that the stamp of the defendant is liable to be mistaken for that of the plaintiff because of the use of the word "Rogers," and by that limited class alone who "look only to the word 'Rogers.'" And again, the case states: "Between the stamps so used by the defendants and the stamps used by the plaintiff upon similar articles manufactured by them, respectively, the dealers and jobbers in such articles have no difficulty in distinguishing; and this is also true of those retail buyers who look beyond the word 'Rogers.' But those who regard the word 'Rogers' only, would be liable to confound one with the other, as is the case of the various 'Rogers' stamps before mentioned. Retail buyers sufficiently acquainted with the various 'Rogers' stamps in the market to distinguish between the same, would have no difficulty in distinguishing between the two stamps of plaintiffs and defendants; but the general resemblance between the two stamps is such that a person knowing that of the plaintiff and not knowing that of the defendant might, upon referring to it, but not reading it attentively, mistake it for that of the plaintiff." Thus, with reiteration, the court below emphasizes the fact that the word "Rogers" is the controlling word,—the one thing that is the basis of all possible confusion or mistake in the use of two stamps.

There is no finding nor suggestion of fact that any other part of the defendants' stamp is answerable in any degree for that liability of mistake. If any other part of the stamp, in configuration, collocation, or combination of words, figures, or symbols, or in other respect, contributed, in any manner, to deceive possible purchasers, and enable the defendants to sell their goods as those of the plaintiffs, it should so have been found by the trial court. This court cannot find such facts from an inspection of the stamp itself. This is not a case where this court can pronounce as matter of law that the defendants' stamp in other particulars so resembles that of the plaintiffs as to amount to a representation that the goods are the plaintiffs' goods. In this particular the case at bar differs from many of the cases cited on briefs of counsel. In some of the English cases relied upon, and in other instances, the court determined from the evidence in the particular case whether the stamp was of objectionable character, thus exercising a combined jurisdiction over fact and law. In our courts, as before stated, these jurisdictions are separated, the fact being committed to the superior court and the law to this court.

It is said that "this stamp, 'C. Rogers & Bros. Al,' is stamped upon the backs of the shanks of the spoons and forks in the same manner and place as plaintiffs' are and have been stamped." This is undoubtedly an evidential fact, from which the trial court might, in connection with other circumstances, have found a liability to deceive, on account of the location and peculiar characteristic of the defendants' stamp; but the court has not so found,—presumptively the evidence did not warrant that conclusion,—and, on the contrary, the court repeatedly tells us that the word "Rogers" alone is the only possible misleading character. And, further, we are informed that "the method of stamping their name upon such articles manufactured by them, and the locality of the stamp upon the article, has been that commonly employed by manufacturers of such silver-plated articles for many years. The mark 'Al' has been frequently used by manufacturers of such ware for many years as a mark of quality, and is so regarded in the trade." Manifestly, upon this condition of facts, in the absence of a finding that the location of the stamp, combining with its form, might have a misleading effect, we cannot say as matter of law that it does have that possible effect, particularly in view of this finding that the location of the stamp is common to the trade, and the addition of the marks of quality "Al," is commonly used by manufacturers as a quality mark. We feel constrained by the facts in the case to say that there is no foundation laid for the claim that we should rule as matter of law that the judgment of the superior court was erroneous, so far as that judgment relates to the stamp in question, in other respects than the use of the word "Rogers."

This appeal raises the question of error or no error upon the facts found; and "when, therefore, on such appeal, the record omits to present facts essential to the case of the appellant, this court can simply affirm the judgment, and cannot remand the case to the lower court for amendment, or a further hearing or finding." Schlessinger v. Chapman, 52 Conn. 273.

Has this plaintiff, as against this defendant, an exclusive right to the use, in its stamp, of the word "Rogers?" Upon this branch of the case there is one further fact stated, as follows: "The purpose of the defendants in stamping their firm name upon the spoons, forks, and knives so manufactured by them has been to indicate to the public that they are the manufacturers of the goods so stamped. But the defendants, in commencing the manufacture of such articles, had in view the popularity in the market of such goods bearing a stamp containing the word 'Rogers,' and an inducement to commencing such manufacture was the advantage they might derive from having their goods so stamped." And then the court finds: "The allegations of fraudulent design and acts on their [defendants'] part, contained in articles 11, 12, 13, 14, 15, and 16 of the complaint, are found to be not true." The eleventh article contains an allegation that the defendants, "with intent to defraud" the plaintiffs, sent their goods into the market with marks closely resembling the claimed trade-marks of the plaintiff. By article 12 it is stated that by the external shape and appearance of the goods, together with the stamp and mode of selling, the defendants caused their goods to resemble the plaintiffs'. Article 13 contains an allegation that the defendants' stamp is a close imitation of plaintiffs', and is an infringement of their trade-mark, and is well calculated to mislead and deceive and does deceive purchasers, and induces them to buy the defendants' goods supposing them to be of plaintiffs' manufacture. Article 14 alleges that the defendants' goods will become known as "Rogers" goods, and that thereby purchasers will be led to buy the defendants' goods believing them to be plaintiffs'; and by article 15 it is alleged that the defendants fraudulently stamp the word "Rogers" on their goods, intending it to operate as a fraud upon the public, upon unwary purchasers, and upon the plaintiffs, in the ways above set forth, etc." So far the trial court has wholly negatived the claim of the plaintiffs that the defendants were actually fraudulent in the use of their stamp, and that such stamp was intentionally used to personate the plaintiffs' goods, notwithstanding the finding that the defendants had in view the popularity of goods marked "Rogers," and that one inducement was the advantage they might derive from so stamping their goods. But in saying that the allegations of fraudulent design and acts on their part,...