Tarrant & Co. v. Johann Hoff

• Decision Date: 21 October 1896
• Citation: 76 F. 959
• Court: U.S. Court of Appeals — Second Circuit
• Parties: TARRANT & CO. v. JOHANN HOFF.

76 F. 959

TARRANT & CO. v. JOHANN HOFF.

United States Court of Appeals, Second Circuit.

October 21, 1896

Fisher A. Baker, for appellant.

Chas G. Coe, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM.

In affirming this decree it does not seem necessary to add anything to the discussion of the law and the facts contained in the opinion of the circuit court. The proposition contended for, that a person has a right to use his own name in his business, was fully accepted by that court, and nothing in the decree prevents Leopold Hoff from selling as his own the malt extract which he makes and disposes of in this country through the defendant corporation as his selling agent. Upon the argument in this court defendant's counsel conceded the correctness of the first proposition set forth in the opinion below, viz. that complainant has the right to sell in the United States 'Johann Hoff's Malt Extract' under the old labels and trade-marks used in Germany for many years. And defendant has not in either court contended that it can sell the Johann Hoff extract, or use the Johann Hoff labels. That a malt extract has been known in the commerce of this country for years as 'Hoff's Malt Extract,' and has been dealt in under that name, is proved by both sides. In view of the elaborate and specific statements contained in the contract of 1869 entered into by defendant, by Johann Hoff (the individual), and by Leopold Hoff, we concur in the conclusion of the circuit court that the extract thus called, which was introduced into this country by Leopold with the concurrence and pecuniary assistance of his uncle Johann, and sold for 20 years by defendant under this contract of 1869, was recognized by all parties as 'Johann Hoff's Malt Extract,' whether made in whole or in part at the original Berlin factory, or at any of the so-called branch houses which existed when the extract began to come to this country, and entered into commerce here under either the name 'Johann Hoff's' or simply 'Hoff's.' Whether the branch houses have ceased to be branches, whether the article now made in any one of them is the same or better or worse than that made in any other, is immaterial. To allow any one of them to advertise and offer for sale under the single name of 'Hoff's,' without indication as to which of the family is the maker, would make it easy to delude the purchasing consumer into buying one kind...