Thackeray v. Saxlehner

• Decision Date: 06 October 1903
• Docket Number: 951.
• Citation: 125 F. 911
• Parties: THACKERAY v. SAXLEHNER. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

125 F. 911

THACKERAY v. SAXLEHNER. ^[1]

No. 951.

United States Court of Appeals, Seventh Circuit.

October 6, 1903

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

GROSSCUP Circuit Judge.

The appellant manufactures in Chicago, according to a recipe not disclosed, the bitter waters to which he attaches decision of the Supreme Court, in Saxlehner v. Eisner & Mendelson Company, 179 U.S. 19, 21 Sup.Ct. 7, 45 L.Ed. 60, nor has he ever been, so far as the record discloses, an importer of natural bitter waters from Hungary. Whether, under these circumstances, appellee is entitled to restrain his use of the word 'Hunyadi,' is the principal question presented.

It is stipulated that the facts set forth in Saxlehner v. Eisner &amp Mendelson Company, supra, are to be taken as the facts in the case under consideration. Without transcribing into this opinion the statement at large, it is sufficient to say that in 1862 Andreas Saxlehner, predecessor of appellee discovered at Budapest, Hungary, a spring named by him 'Hunyadi,' in honor of a Hungarian hero of the fifteenth century; that under an order of the municipal council of the place where the wells were located, he subsequently sunk other wells, and began to export the waters to European countries and the United States; that for this purpose he adopted a novel style of bottle of straight shape with short neck, to which was attached a metal capsule bearing the inscription (translated) 'Hunyadi Janos bitter water of Buda', as also a peculiar label covering the body of the bottle, divided into three longitudinal panels, the middle one of which bore the supposed portrait of the hero, with the name Hunyadi Janos written in large letters on the top--the color of the middle panel being a reddish brown, and the other panels white; and the water, in this kind of bottles, has found its way to the United States to the extent of about one million bottles a year, and is known at large as Hunyadi water.

In 1872 another water from the same locality was, under an order of the Minister of Agriculture of Hungary, put upon the market under the name of 'Hunyadi Matyas', and under that name found its way into the United States. Other waters from the same locality; known as 'Hunyadi Arpad', and 'Hunyadi Josef' and the like, came under the permission named upon the market, including the market of the United States.

Against some of these importers, suits were brought in 1886 in the Circuit Court of the United States and in the State Courts of New York, by the Apollinaris Company, Limited, of London, the distributing agents of Saxlehner; in some of which suits ex parte injunctions were issued, and in others the suits withdrawn for want of jurisdiction; but in 1888 the pending injunctions were dissolved, and the suits discontinued. In all of these...