Bluthenthal v. Mohlmann

Hooker, J. (After starting the facts.) We are of opinion that the allegations of the bill show that the appellants have rights in the exclusive use of the trade mark of their brand of whiskey cálled “Old Joe,” described in the bill, and we are unable to say,' in the face of the admission by the demurrer of those allegations, that a bare inspection of the exhibits affords sufficient proof to do away with the effect of those admitted allegations. The bill, among other things, alleges that complainants had established a right to use the devices upon the bottles containing the “Old Joe” whiskey as a trade mark, that the brand of the defendant resembled that of complainants in size of package, shape, color and appearance; and that the defendant is actually selling his brand of “Old Geo. Whiskey” as and for the whiskey of complainants, and that these acts of defendant constitute an unfair and fraudulent competition in business. These allegations are admitted by the demurrer. If it be true, as thus admitted, that there is such a resemblance as to enable the defendant to actually spll his brand of whiskey for that of complainants, we do not think it can be said the .bill is without equity. El Modello Cigar Man. Co. v. [280] Gato, 25 Fla. 886, 7 South. Rep. 23; 28 Am. & Eng. Ency. Law (2nd ed.) 416; Leidersdorf v. Flint, 50 Wis. 400, 7 N. W. Rep. 252; American Trademark Cases (Price & Steuart) 176, 431. We think the court erred in sustaining the demurrer and dismissing the bill. In regard to the order refusing a temporary injunction we can not say that the chancellor erred. There, was a great conflict in the affidavits of the respective parties, and it does not clearly appear that the chancellor’s ruling refusing a temporary injunction was against the weight of the evidence. Baya v. Town of Lake City, 44 Fla. 491, 33 South. Rep. 400. The order sustaining the demurrer and the decree dismissing the bill are reversed, and the cause remanded for further proceedings. Taylor and Cockrell, JJ., concur. Whitfield, C. J., and Carter and Shackleford, JJ., concur in the opinion.