Sterling Remedy Co. v. Eureka Chemical & Mfg. Co.

• Decision Date: 03 May 1897
• Docket Number: 298.
• Citation: 80 F. 105
• Parties: STERLING REMEDY CO. v. EUREKA CHEMICAL & MANUFACTURING CO.
• Court: U.S. Court of Appeals — Seventh Circuit

80 F. 105

STERLING REMEDY CO. v. EUREKA CHEMICAL & MANUFACTURING CO.

No. 298.

United States Court of Appeals, Seventh Circuit.

May 3, 1897

'No-To-Bac. Trade-mark registered. Is a Positive and Permanent Cure for the Tobacco Habit in every form. It is Nature's Own Remedy. It is entirely harmless, being of vegetable origin. It will build up, fortify, and rejuvenate the weak and unstrung nerves, and eradicate the poisonous nicotine from the system. It will increase the appetite and digestive power, enrich and purify the blood. From ONE to THREE BOXES guaranteed to cure any case, if used as directed. PRICE $1.00. Made only by the STERLING REMEDY COMPANY, Indiana Mineral Springs, Warren Co., Indiana. Chicago office, 45 and 47 Randolph St.'

On the reverse side is the following:

'Directions for the use of NO-TO-BAC. CURE FOR THE TOBACCO HABIT IN EVERY FORM. Immediately discontinue the use of TOBACCO, and use 7 to 10 tablets a day by placing them in the mouth, and allowing the tablet to gradually dissolve before swallowing. In this way you get the prolonged action of No-to-bac upon the secretive glands of the mouth. During treatment the bowels should be kept open. One or two free actions EVERY day will greatly assist the medicine in expelling the nicotine from the system. CONTINUE THE USE OF NO-TO-BAC until the desire for tobacco and its effects upon the system are completely eradicated. Patients writing about their case and asking advice, etc., must inclose stamp for reply. Address THE STERLING REMEDY COMPANY Indiana Mineral Springs, Warren Co., Ind. Chicago office 45 and 47 Randolph St.'

This box is sealed with a sealing label of reddish pink, having upon it the complainant's name in script letters, and the following printed thereon: 'Not genuine unless signed by The Sterling Remedy Co. Chicago, New York, Montreal. Laboratory, Indiana Mineral Springs, Ind.'

The appellant at one time used a wire rack, adapted to hold three boxes arranged in a triangular form together with a show card; these racks being used principally by retail dealers in the article. It also used and distributed a booklet containing descriptive matter calling attention to the article and to its merits as a cure, and containing fac simile representations in black and white of the box in which the remedy was packed, and of the imprint and of the label for sealing and of the wire rack.

The answer of the appellee admits that since the 1st day of July, 1894, it has prepared and put upon the market and sold a certain other alleged remedy or cure for the so-called 'tobacco habit,' which preparation is put up and sold in an ordinary tin tobacco box of the same form and size as that of the complainant. The article is also in the form of a tablet or lozenge, of dark brown or black color, somewhat smaller than the lozenge manufactured by the complainant, and of less weight, and without any trade-name thereon. The defendant's lozenge has a strong odor of licorice; the complainant's lozenge is nearly or quite odorless. The imprint of the label upon the defendant's box is green upon a white ground. Upon the top of the box is printed the following:

'BACO-CURO. Trade-mark. A SCIENTIFIC, RELIABLE, AND HARMLESS CURE FOR THE TOBACCO HABIT IN EVERY FORM. It builds up the system, enriches the blood, tones up the stomach, and increases the appetite and digestive power. It cures tobacco dyspepsia that so many tobacco users suffer with. Makes weak, nervous men strong and vigorous. Good, sound, refreshing sleep and a decided gain in weight and general health follows the first few days' use. We guarantee to cure any case with from one to three boxes. Price $1.00. Prepared only at the laboratory of EUREKA CHEMICAL & MFG. CO., La Crosse, Wis., U.S.A. Read bottom of box.'

Upon the reverse side are the following directions:

'DON'T STOP TOBACCO when you begin taking a cure, AND DON'T BE IMPOSED UPON by buying a remedy that requires you to do so. Any person can stop short on tobacco, and take a piece of gum or a cough drop in his mouth, every hour or two, as a substitute, and by keeping the bowels open, to more quickly work the nicotine out of the system, can practically cure himself, as well as by taking some so-called cures that require this mode of treatment. But it requires a strong will power to stay cured, as you always remember tobacco with a relish, and it will take years to outgrow the desire for it. BACO-CURO does not require you to stop tobacco when you begin the treatment. IT WILL NOTIFY YOU WHEN TO STOP. Your desire for tobacco will cease, and it causes you to remember it with disgust, not a relish, as other so-called cures do. You don't care for tobacco any more than before you commenced using it. BACO-CURO does not rely upon your own will power to cure you, it does its work unaided, and leaves your system as pure and free from nicotine as the day before you took your first chew or smoke. BACO-CURO is compounded after the formula of an eminent German physician, who has prescribed it in his private practice since 1872 to hundreds of cases without a single failure, when directions have been followed. This formula is controlled exclusively by us in North and South America. Prepared only at the laboratory of EUREKA CHEMICAL & MFG. CO., La Crosse, Wis. U.S.A. Directions inside.'

The sealing label on the box has the following, the name being in script, but much heavier in design than that on the sealing label of the appellant: 'None genuine without Eureka Chemical & Mfg. Co. This signature.'

There was given considerable evidence tending to show that in the transactions between the defendant and its agents circulars similar in character to those of the complainant were used and contracts with agents were of a similar nature with those used by the complainant. The hearing was had upon stipulation that...