Taylor v. Bostick
| Decision Date | 16 May 1924 |
| Docket Number | 3086. |
| Citation | 299 F. 232 |
| Parties | TAYLOR v. BOSTICK. |
| Court | U.S. Court of Appeals — Third Circuit |
E Hayward Fairbanks, of Philadelphia, Pa., for appellant.
Hector T. Fenton, of Philadelphia, Pa., for appellee.
Before WOOLLEY and DAVIS, Circuit Judges, and MORRIS, District Judge.
Horace B. Taylor instituted this suit in equity against Elmer E Bostick to obtain relief for the alleged infringement of plaintiff's trade-mark, No. 87,574, registered July 23 1912, and for unfair competition. Both were citizens of the state of Pennsylvania. The plaintiff died, and his executrix was substituted as party plaintiff. The court below on final hearing held the trade-mark not infringed, denied the relief sought on the ground of unfair competition, and dismissed the bill of complaint. The plaintiff, assigning those acts of the court as errors, appealed.
The trade-mark is used upon packages containing Hooper's Pills. It is carried on a narrow paper binding band, about an inch wide and five or six inches long, by which the circular wrapped about the oval wooden pill box is held in place. The general color or background of the band is red. Midway the length of the band is a circular piece of sealing wax or thick printing ink, about seven-eighths of an inch in diameter and gold in color. Upon its center is impressed a star, above which is the word 'Star.' In small letters, near the lower part of the periphery of the seal, are the words 'Gold Seal.' The red binding band is dotted near the top and bottom margins with black trefoiled figures. Running through these figures at the top and bottom of the band, and on each side of the central seal, are long, narrow white spaces. In the upper white space at the left of the seal the word 'Star' is printed. In the lower white space on the same side of the seal are the words 'Gold Seal.' Across the left end of the band is a rather inconspicuous pictorial representation of an animal seal. On the left side of the wax seal, and running down the center of the band, is the word 'Hooper's,' and on the right is the word 'Pills.' These two words are printed in large letters. In the application for the registration of the trade-mark, the words 'Hooper's' and 'Pills' were expressly disclaimed.
Hooper's Pills were made originally in England a very long time ago under a formula described in a British patent to Hooper. For upwards of 30 years 'Hooper's Pills' have been made in the United States under that formula, modified from time to time as set forth in successive editions of the United States Dispensary. During all that time they have been sold in small oval wooden boxes wrapped in a circular, carrying an abstract of the British letters patent, held in place by a binding band of the same general dimensions, color, and design as that of the plaintiff. The narrow white spaces, however, contained no printing, and the representation of an animal seal was not used. The central wax seal was of the same design, but not of the same color, as that of the plaintiff. The earlier seals were red, blue, or black, and bore at the center the impressions 'Red Seal,' 'Blue Seal,' and "black Seal,' respectively, and near the upper part of the circumference the words 'Dr. Hooper's' and near the lower the word 'Improved.'
The defendant uses a binding band of the long-established size color, and design. The narrow white spaces contain no printing. There is no representation of an animal seal. The wax seal is of the same size and design as those in use when the plaintiff began in the year 1911 to use his trade-mark, subsequently registered; but its color is that of gold. Upon its center are impressed the words 'Gold Seal.' Above them, in smaller letters, near the circumference are the words 'Dr. Hooper's,' and below them, in letters of like size and in like relation to the circumference, the word 'improved.' Neither the star nor the word 'star,' used by the plaintiff, is used by the defendant. The only difference between the defendant's binding band and those in use prior to plaint...
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