Chickering v. Chickering & Sons

JENKINS, Circuit Judge (after stating the facts as above). Undoubtedly, one cannot have a technical trade-mark in his own name, or acquire exclusive property right in it as against others of the same name. Undoubtedly, every man has the right to use his own name honestly and fairly in his own business, and, so using it, is not respon 73 sible for resulting confusion with the goods of another of the same name, nor liable for any damage resulting from such confusion. On the other hand, every man must so use his name as not unnecessarily to injure another, nor produce greater confusion than would naturally result from mere similarity or identity of name. He may not dress his goods in a way calculated to confuse them with, and enable them to be palmed off as, the goods of another. Chemical Co. v. Meyer, 139 U. S. 540, 11 Sup. Ct. 625, 35 L. Ed. 247; Singer. Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118; Elgin Nat. Watch Co. v. Illinois Watch Case Co., 179. U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365; Meyer v. Medicine Co., 58 Fed. 884, 7 C. C. A. 558; Pillsbury v. Flour Mills Co., 64 Fed. 841, 12 C. C. A. 432; Flour Mills Co. v. Eagle, 86 Fed. 608, 30 C. C. A. 386, 41 L. R. A. 162; Stuart v. F. G. Stewart Co., 91 Fed. 243, 33 C. C. A. 480; Chas. E. Hires Co. v. Consumers Co., 100 Fed. 809, 41 C. C. A. 71; Peck Brothers & Co. v. Peck Bros. Co., 113 Fed. 291, 51 C. C. A. 251. The question for consideration is whether the court below improperly exercised its discretionary power in respect of issuing an injunction pendente lite. Unless it clearly appears that it has so done, the order should be affirmed. It is not desirable — if it be entirely proper — that' we should at this time review the merits of this controversy. The conflicting ex parte statements produced by the parties leave the case in some doubt with respect to the responsibility of the appellants for false representation by the sales agents of the appellants. It is better to reserve judgment upon disputed questions of fact until the cause shall come again to us upon the final hearing, when the evidence may be scrutinized in the light of intelligent cross-examination. We content ourselves, therefore, for the present, with a consideration of the case upon certain undisputed facts. The Chickering piano, as the product of the Boston factory, had become known certainly throughout the United States, if not in foreign lands. It had attained a high reputation for excellence. It was known by the name “Chickering,” and that name was to the public an assurance of excellence in tone and in manufacture. The appellants had a right to associate themselves in business under the name of “Chickering Bros.” They had also the right to engage in the manufacture of pianos. But, well knowing of the existence of the Chickering piano, it was their duty so to indicate the piano made by them that it should not be mistaken for the “Chickering” piano known to the world. They have not done this. They have used the same old English style of lettering upon the fall board that is used upon the “Chickering” piano. It is no excuse to say that most manufactures of pianos use that style of lettering. The duty was upon them, under the circumstances, to distinguish their pianos from the “Chickering” pianos, and they cannot plead, in avoidance of that duty, that others of different names used that style of lettering. Their duty was to distinguish, not to imitate; and the use of the word “Chickering” in the same style of lettering tends to deceive. The assertion of the appellants in their publications that they “make the only piano made by a Chickering” is also deceiving, and its adoption immediately after 74 the death of Mr. George H. Chickering might well induce the belief that its use was intentionally designed to deceive, and to acquire for themselves the trade and good will of the appellee. While the truth of the statement may be conceded, it is, as stated, only a half truth, conveying to the public the idea that the “Chickering” piano known to the public was made by the appellants, and not by the appellee. It is not needful at present to pursue the subject. We prefer to reserve judgment until the coming in of proofs. For the present we cannot say that the discretion of the court below was improperly exercised in restraining the acts complained oh It may be that the order is in some respects too broad in its terms, particularly the second paragraph of it; but the assignment of errors goes to the whole order, and not to any particular paragraph of it, so that we are not called upon to scrutinize language unchallenged by the parties complaining. It is within the power of the court below at any time to modify the order if any of its restraints be unwarranted. is affirmed.