Shelley v. Sperry
| Decision Date | 08 January 1907 |
| Parties | SHELLEY, Appellant, v. SPERRY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.
AFFIRMED.
STATEMENT.--The petition in this case is in the nature of a bill in equity and the relief asked is an injunction against future imitations of a washing powder made by plaintiff, the packages in which it is put up, the labels printed on the packages, and damages for infringements of his rights already committed. Plaintiff Shelley does business in the city of St Louis under the style of M. B. Shelley Manufacturing Company. He manufactures starch, baking powder, washing powder and other articles described as household sundries. Defendant Sperry is engaged in the like business in St. Louis. The defendants, American Supply Company and Red Cross Supply Company, do not make washing powder but deal in it through mail orders. They furnish household supplies in response to orders by mail, the articles being selected by their customers from catalogues. The Mound City Printing Company prints the labels and descriptive matter on the cartons or cases in which is packed the washing powder manufactured by plaintiff. This powder is alleged to be a valuable cleansing and polishing compound, useful for cleaning metals, china glassware and all household articles. The petition says that six months before the institution of the present action, he had been selling the American Supply Co. and the Red Cross Supply Co.; that seeing the great utility and popularity of said powder, Sperry surreptitiously secured knowledge of its component parts and undertook to manufacture a cleaning and polishing powder of the same kind and composed of the same constituents; seeking thereby to take from plaintiff the latter's customers with the object of undermining and ruining plaintiff's business and securing his trade; that Sperry had notified many of plaintiff's customers of his (Sperry's) readiness to fill orders for the same powder plaintiff had been making, and had solicited contracts from plaintiff's customers, among others, the American and the Red Cross Supply Companies. The petition further states that plaintiff had been furnishing the powder to the American and Red Cross Supply Companies in boxes and cartons of a certain pattern and with a distinctive design printed and stained thereon, which was prepared by plaintiff and by him first used on a carton containing the Washing Powder; that the said Supply Companies had not previously used cartons for washing powder bearing such design; that plaintiff owns the plates from which the cartons are printed. Plaintiff charges that pursuant to a fraudulent scheme, the Sperry Manufacturing Company, under which title Sperry does business, tried to induce the Mound City Printing Company, with which plaintiff had deposited his plate or stone for printing cartons, to print labels and cartons for the use of the Sperry Manufacturing Company so that said defendant could furnish washing powder manufactured by it to the American Supply Company and the Red Cross Supply Company, and put it up in cartons bearing plaintiff's characteristic designs, and labeled with the same marks borne by the cartons in which plaintiff had been furnishing his washing powder to said Supply Company; that Sperry and the Sperry Maunfacturing Company had offered to fill the orders of said Supply Company and plaintiff's other customers with cartons of Washing Powder at a less price than plaintiff was accustomed to charge and less than plaintiff's goods cost to manufacture; that Sperry also took genuine labels and cartons of plaintiff, which he procured from some persons, and got printers to make plates for him (Sperry) in exact imitation of plaintiff's genuine labels, to the end that Sperry might furnish said Supply Company and other wholesale and retail dealers and purchasers, packages of washing powder like those sold by plaintiff; that the preparation of the plate from which the printed labels and cartons in imitation of plaintiff's was in progress; that said Sperry and his company had notified the Red Cross Supply Company, with whom plaintiff had a valid contract to furnish 250,000 cartons of plaintiff's washing powder, that Sperry and his company would supply it with boxes of washing powder of the same size and shape and bearing the same characteristic designs as plaintiff's; that said Sperry and his company began to supply said Red Cross Supply Company with a washing powder in such boxes on or about June 15, 1905, at a lower price than plaintiff was furnishing same; thereby inducing the Red Cross Company to demand a reduction of price by plaintiff. The relief prayed is that Sperry and the Sperry Manufacturing Company, and all their agents and employees, be enjoined first, from making, directly or indirectly, any plate or label for washing powder which are in any respect an imitation or copy of plaintiff's labels; second, from making or causing to be made any preparation which contains ingredients of washing powder practically like plaintiff's powder; third, from selling or offering to sell any washing powder bearing such imitation labels aforesaid, and representing that the powder they sell is like the powder made by plaintiff; that they be compelled to cancel their orders to the Mound City Printing Company, or any other printer, for making labels like plaintiff's and be required to destroy all labels, boxes or cartons already engraved or printed. As to the Mound City Company the relief prayed is that it be enjoined from printing labels in imitation of plaintiff's or making a plate for that purpose and to give up any already printed or made. As to the American Supply Company, the relief prayed is that it be restrained from receiving from Sperry and the Sperry Manufacturing Company, or any other person, a compound or preparation made by said Sperry or Sperry Manufacturing Company and not made by plaintiff, which resembles, purports to be and is an imitation of plaintiff's genuine washing powder. No specific relief against the Red Cross Company was demanded, but there was a prayer for general relief. Sperry the Mound City Printing Company and the American Supply Company answered by a general denial. The Red Cross Company filed no answer. The facts of the case are stated in the evidence without material discrepancy. Shelley manufactures the washing powder in controversy and other articles, such as starch, extracts, baking powder, etc. He had been selling the powder for six or eight months prior to the institution of this suit, had striven to introduce it to the trade and render it popular and his efforts had met with success; but we gather from the testimony that no sales had been made under his own name or business style, but all the sales through wholesale dealers who were held out as manufacturers of the powder. He had furnished, it seems, 500,000 cartons at ten dollars a thousand, to the American Supply Company under a contract, and prior to the institution of the suit had arranged a contract with the Red Cross Company to furnish 250,000 at the same price. The manager of the American Supply Company requested a lower price on the powder, being induced to do so by an offer from Sperry to furnish Sperry's washing powder at less than the company had been paying plaintiff. Sperry offered to furnish his washing powder to the Red Cross Supply Company at $ 7.20 a thousand and that company notified plaintiff of the offer. The consequence was that plaintiff, fearing he would lose said company's trade after the expiration of his current contract, reduced the price on packages to be furnished under the contract to $ 7.20, thereby losing $ 2.80 per thousand of profit. The cartons of plaintiff's washing powder furnished to the American Supply Company had this label printed on them in different colors:
Copper, Tin, China and Glassware.
Great Time and
Money Saver.
The cartons of powder plaintiff furnished the Red Cross Company had a label printed on them, as we understand, containing a picture of a red cross, and styling the powder the Red Cross Washing Powder, the label in other respects being like the carton furnished the American Supply Company. The washing powder manufactured by Sperry and his company differed both in color and composition from that manufactured by plaintiff and plaintiff asserts is of inferior merit. It is put up in cartons the exact size and shape of those in which plaintiff's powder was furnished the two companies and bearing the same labels. Plaintiff contends that this amounts to unfair competition and an infringement of his trade labels by Sperry. Other facts bearing on this proposition must be related. The American Supply Company sells various articles for use in the household; twenty-five or thirty different ones. It does business by mail orders exclusively. Every article sold by the American Supply Company is designated by the name of "Queen" and has a picture of a girl on the label; that is to say, it sells Queen Washing Powder, Queen Talcum Powder, Queen Bluing, etc. The company has expended more than four hundred thousand dollars in advertising the Queen brand of goods and giving its articles popularity throughout the United States. None of these articles are manufactured by the company itself, but by whomsoever manufactured, they are put up in packages containing the company's characteristic brand of "Queen" with the picture of a girl. The Red Cross Company does a similar business, in goods put...
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