Hennessy v. . Wheeler

Earl, J. It was found by the court .that the defendants pirated plaintiffs’ trade mark, but it dismissed the complaint upon the following findings of fact: “ The plaintiffs, in the conduct of their business, and for the purpose of effecting sales of their brandy in bottles, do not use or employ in their said business quart or pint bottles, as alleged in their complaint, but for the purpose of effecting sales thereof in bottles, systematically and intentionally use bottles falsely and deceitfully cast and constructed as pretended or ostensible quart and pint bottles, and represented by plaintiffs as ‘ quart and pint ’ bottles, but which in fact are deficient in the quantities, as represented by such bottles, to the extent of 7-30 thereof; that the plaintiffs’ said trade mark was designed and used to protect such false and deceptive representations as to the quantity of the article contained in such bottles, and to promote the deception of buyers of the article in that respect;” and upon the following conclusion of law based thereon: “ That such false and deceptive representation as to the quantity of the brandy put up and offered for sale, and sold in such bottles, deprives the plaintiffs of any right to claim any protection of this court, through any remedy by injunction, for their trade mark so *274 designed to favor and confirm such falsehood and deception.” The ground upon which plaintiffs’ complaint was thus dismissed was not set up in the answer, and does not appear to have been litigated at the trial. There is an allegation in the complaint that the plaintiffs put up their brandy in quart and pint bottles, and put their' trade-mark upon such bottles, and exported them for sale; but no fact is alleged in the complaint or answer from which it could be inferred that the brandy was thus put up for the purpose of deceiving or imposing upon anyone. Nothing appeared upon the bottles or the trade mark to indicate that the bottles contained quarts and pints; and there was nothing in their appearance or form to deceive or impose upon any one. They were transparent, and any one looking at them could see the quantity they contained. It does not appear that these bottles in the trade are ever used as the measure of quantity, or that they are ever sold or bought as actually containing quarts and pints. The plaintiffs are manufacturers of and wholesale dealers in the brandy, and the bottles when imported into this country are entered at the custom house with a statement of the true quantity contained in them. There is no proof that any purchasers from the plaintiffs purchased upon the faith that the bottles actually contain quarts and pints, or that such purchasers did not understand perfectly their capacity; and there is no proof that the plaintiffs ever represented to any one that the bottles contained quarts and pints, or that they ever deceived or imposed upon any one; and there is no proof that any dealers in their bottles of brandy ever sell them as containing more than by measure they actually contain. It does not appear that plaintiffs’ trade mark was used or could be used by them to impose upon or deceive any one, or that they carried on their business for a dishonest purpose, or in such way as to cheat or defraud any one. It is not questioned that their brandy is a genuine article, just what it purports to be, and while in their complaint the bottles are described as quart and pint bottles, they appear to be of the ordinary *275 sizes used in the liquor trade, and I think we may assume that the brandy in them is sold by the bottle, and not in reference to measure. Any one purchasing knows just what he is purchasing, and the price is regulated by the size of the bottles. We may assume that the plaintiffs ship -their brandy to various parts of the world, and the fact that a quart differs in size in various countries shows that it is impracticable to have bottles which shall actually measure quarts and pints. The brandy is put in bottles of convenient size, and sold by the bottle, and in this country they may be called quart and pint bottles because they are nearest in size to the measures named, and the designation is sufficiently accurate for all the purposes of trade, and no one is necessarily or intentionally deceived. This is, therefore, not a case where it can be said that plaintiffs came into court with unclean hands and guilty consciences, and must therefore be denied equitable relief. It is not like the cases where the trade mark is used to deceive or impose upon the public, or where it is used upon a spurious, worthless or deleterious compound,' or where the business in which it is used is carried on systematically in a dishonest and fraudulent way. In such cases courts will not lend1 their aid to protect trade marks. (Laird v. Wilder, 9 Bush., Ky., 131; Heath v. Wright, 3 Wall Jr., 141; Fetridge v. Wells, 13 How. Pr., 385; Hobbs v. Francais, 19 How. Pr., 567; Wolcott v. Walker, 7 Ves., 1; Hogg v. Kirby, 5 Ves., 610; Pidding v. How, 8 Sim., 447; Palmer v. Harris, 60 Penn., 156; Lee v. Haley, 5 L. R. [Chy. App.], 155; Wolfe v. Burke, 56 N. Y., 122.) We are therefore of opinion that the judgment must be reversed, and new trial granted, costs to abide event. All concur, Ablest and Folger, J.J., absent. Judgment reversed.