Thedford Medicine Co. v. Curry

Lumpkin, Justice. The reporter’s statement sets forth, in brief, the substance of the plaintiffs’ declaration, as amended, and of the demurrer filed to the same. While the declaration is, perhaps, unnecessarily voluminous, and contains numerous allegations which would not, of themselves, show any right of recovery, we think that as a whole it sets forth a cause of action, and that it was error to sustain the demurrer. The most material allegations of the declaration are summarized in the head-note. It would seem, that if the plaintiffs were engaged in a profitable business, which consisted of the manufacture and sale of a really valuable medicine; and the defendant fraudulently, deceitfully, and with the intent to injure that business, manufactured under a smilar name a spurious and inferior medicine in imitation of that made by the plaintiff's; and, for .the purpose of carrying out the fraudulent intent already mentioned and unjustly making money upon the reputation which the plaintiff's had established for their medicine, simulated their wrappers and thus deceived the public into buying large quantities of the. spurious medicine as the genuine, and in consequence reducing the plaintiff's’ sales and causing them injury and damage, a wrong was committed for which the law should afford a remedy in damages. [94] What the proof may disclose at the trial we cannot, of course, anticipate; but if the defendant did all that the plaintiffs charge, for the purpose and with the result alleged, the case is one which should be passed on by a jury. The principle upon which we think the case should have been retained for a hearing is intimated by Chief Justice Lochrane at the conclusion of his opinion in the case of Ellis v. Zeilin & Co., 42 Ga. 95. After stating that the court did not think there was equity in the bill filed in that case, on the mere question of similarity in the trade-marks, he added: “But as the demurrer admits that what was done was done intentionally to take advantage of the reputation of his ‘ Simmons’ Liver Medicine,’ we cannot hold the judge below erred in retaining the bill for a hearing to let the 'whole matter be determined upon its merits.” It was strongly insisted in the present case, however, that under the allegations of the plaintiffs’ declaration, and in view of the exhibits thereto attached purporting to be the two wrappers in question, the defendant did not really simulate the plaintiffs’ wrappers, and that there was no such similarity between them as would deceive persons of ordinary observation. Whether there was, or was not, a fraudulent simulation of the plaintiffs’ wrappers was, as remarked by Chief Justice Bleckley in Foster, Milburn Co. v. Blood Balm Co. et al., 77 Ga. 216, at bottom a question of fact, rather than of law. At any rate, the declaration distinctly alleged there was such a simulation, that its intent was fraudulent, and that its results were as matter of fact highly injurious to the plaintiffs’ business. On the whole, we think that the question whether or not the label or device used by the plaintiffs had become such a badge of origin and ownership as to be the subject of protection against a colorable imitation likely to deceive the public and injure the proprietors in their [95] trade, was one for determination by a jury, and not for final solution by the presiding, judge. Judgment reversed.