Charles Alff & Co. v. Radam

ACKER, Presiding Jüdge. —William Radam brought this suit against Charles Alff & Co., a firm composed of Charles Alff and Joe K. Heim, and against ihe members of the firm individually, to recover damages for alleged infringement of a trade mark, and for injunction restraining the defendants from using the alleged infringing trade mark. The trial by jury resulted in a verdict for plaintiff for one cent damages, and judgment was rendered perpetuating the injunction, from which this appeal is prosecuted. The alleged trade mark of plaintiff consisted of the words ce Microbe Killer,” used in conjunction with a device, symbol, or illustration representing a man in the attitude of striking a human skeleton with a blud [540] geon. The words and illustration are printed ón a white paper label 8-| by 5y inches in dimensions, with a red border around it, the illustration being printed in red ink while the name and directions for using are printed in black ink. The alleged trade mark of the defendants consisted of the words “ Microbe Destroyer,” printed on a yellow paper label 4-| by 4f inches in dimensions, with a black border around it, but no device or symbol. Appellants contend that the words “ Microbe Killer ” are words of definite meaning, in common use, descriptive of the quality, ingredients, or charactei’istics of the remedy put up and sold under that name, “and therefore not susceptible of being erected into a trade mark.” What constitutes a trade mark is a question of law for the court. Whether a trade mark has been so constituted, and if so constituted whether there has been an infringement of it, are ordinarily questions of fact for the jury. In the ease'of Manufacturing Company v. Trainor, 101 United States, 54, it is said: “ The limitations upon the use of devices as trade marks are well defined. The object of the trade mark is to indicate, either by its own meaning or by association, the origin or ownership of the article to which it is applied. If it did not, it would serve no useful purpose either to the manufacturer or to the public; it would afford no protection to either against the sale of a spurious in place of the genuine article. This object of the trade mark and consequent limitations on its use are stated with great clearness in the case of Canal Company v. Clark, 13 Wallace. There the court said, speaking through Mr. Justice Strong, that ‘No one can claim protection for the exclusive use of a trade mark or trade name which would practically give him a monopoly in the sale of any goods.other than those produced or made by himself. If he could, the public would be injured rather than protected, for competition would be destroyed. Nor can a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients, or characteristics, be employed as a trade mark, and the exclusive use of it be entitled to legal protection.’ And a citation is made from the opinion of the Supreme Court of the city of New York in the case of the present complainant against Spear, reported in 2 Sandford, that ‘ the owner of an original trade mark has an undoubted right to be protected in the exclusive use of all the marks, forms, or symbols that were appropriated as designating the true origin or ownership of the article to which they are affixed; but he has no right to the. exclusive use of any words, letters, figures, or symbols which have no relation to the origin or ownership of the goods, but are only meant to indicate their names or quality. He has no right to appropriate a sign or symbol which from the nature of the fact it is used to signify, others may employ with equal truth and therefore have an equal right to employ for the same purpose.’” Words in common use are common property of the people, and no exclusive right to the use of such words can be acquired by adopting them [541] as a trade mark, unless they be used in an arbitrary or fanciful sense and not in their ordinary signification. Browne on Trade Marks, sec. 161; Filley v. Fassett, 100 Am. Dec., 279. On the trial the plaintiff testified that the words “ Microbe Killer " mean “fungus" destroyer; that the word microbe was intended to signify fungus; that in using the name “ Microbe Killer” he intended to convey the meaning that it kills those things, and that the name “Microbe Killer" means destroyer of microbes. That the words are English words in common use, of known signification and fixed meaning, we think there can be no doubt, and that they were employed by the plaintiff in their ordinary and not in any arbitrary or fanciful sense is shown beyond question by the testimony of the plaintiff himself. Under the authorities, supra, we think it quite clear that the words “ Microbe Killer” as used by the plaintiff did not constitute a trade mark. Notwithstanding plaintiff has no real or legal trade mark, if the defendants had intentionally simulated the peculiar device or symbol employed by plaintiff on his labels, and such simulation was calculated to deceive ordinarily prudent persons, and did deceive such persons, the plaintiff would be entitled to protection against the consequences of such deception, not because of his device or symbol being a trade mark in the legal sense of that term, but because of the fraud and deception practiced by the defendants upon the plaintiff and the public. In this case, however, the labels used by the plaintiff and defendants respectively are so entirely dissimilar that we do not think it possible for any person of ordinary prudence and caution to have been deceived by defendants’ label and thereby induced to buy their remedy when the purchaser desired and intended to buy the plaintiff’s remedy. Other assignments of error are immaterial and will not be discussed, as what we have said disposes of the case. We are of opinion that the judgment of the court below should be reversed and judgment rendered here that appellee take nothing by his suit, and that he pay all costs of this and of the court below. Reversed and rendered. Adopted June 3, 1890.