Oppermann v. Waterman

WiNslow, J. It may well be seriously doubted whether the words “ German Household,” or either of them, can be appropriated as a trade-mark by the plaintiff. The word “ German ” would seem, under the facts before the court, to have been used in a merely geographical sense, as indicating the country where the dyes were manufactured; and the word “ Household,” in the same way, seems to denote quality or character of the dyes. Browne, Trade-Marks (2d ed.), §§ 29, 192; Dunbar v. Glenn, 42 Wis. 118. We do not decide these questions, however, because we do not construe the injunctional order as absolutely inhibiting the use of these words, but as simply preventing the defendants from using them in such manner upon their packages, labels, and •circulars as will, in connection with other similarities in labels and style of package, amount to a fraudulent imitation, and be likely to deceive purchasers into the belief that the defendants’ dyes are in fact the same as those sold by the plaintiff. With this construction, which we believe to be a fair one, the case becomes, not a case of invasion of a trade-mark, but rather a case of unfair competition in trade ■by means of a simulated label and style of package. It is well settled that a close imitation of the plaintiff’s labels and style of package, which is obviously calculated to ■deceive the public into the belief that the imitation is in fact the original, is a fraud; and where it appears that damage has or must necessarily result from such imitation the plaintiff will be entitled to relief upon the ground of fraud, independently of the question of trade-marks. Cleveland Stone Co. v. Wallace, 52 Fed. Rep. 431; Browne, Trade-Marks (2d ed.), § 537 et seq.; McLean v. Fleming, 96 U. S. 254; Landreth v. Landreth, 22 Fed. Rep. 41. There was ample ■evidence before the trial court tending strongly to show that this was just such a case. It seems quite clear that the plaintiff first used the label and style of package. The size, shape, and general appearance of the packages and labels [587] are almost identical; colors of ink used the same; the arrangement of the printed matter very similar; in fact, there was a very apparent and close imitation, which would evi■dently be very apt to mislead the ordinary purchaser, and ■actual proof of such deception upon the trade was produced. The trial judge, in the exercise of his discretion, very prop■erly granted the temporary injunctional order, and no sufficient ground for vacating the order was shown. It is objected that no undertaking was ordered or given upon the making of the injunctional order, as required by sec. 2778, R. S. It is probably sufficient to say that no motion to vacate on this ground was ever made. Rule XI of the Circuit Court Rules provides that, if a motion is made for relief upon the ground of irregularity, the irregularity complained of shall be particularly specified. The failure to require an undertaking was plainly an irregularity only; it did not affect the jurisdiction. Doubtless the trial court may make an order requiring the undertaking at any time when the matter is brought to its attention. By the Court.— Order affirmed.