Brougham v. Blanton Mfg. Co.

SMITH, Circuit Judge. The Meinecike-Blanton Manufacturing Company commenced the manufacture of oleomargarine about 1902. It adopted the trade-mark “Creamo Oleomargarine” for its goods about 1904. It was succeeded by,the appellee the Blanton Manufacturing Company. August 2, 1886 (24 Stats. 209, c. 840), Congress passed a law imposing a tax of $600 a year upon all manufacturers of oleomargarine. On May 9, 1902, Congress greatly elaborated this law. 32 Stat. 193, c. 784, U. S. Compiled Stats. 1916, § 5977. Section 6 of the act'(24 Stats. 209, 210) contained the following: “Sec. 6. That all oleomargarine shall be packed by tbe manufacturer thereof in firkins, tubs, or other wooden, packages not before used for that purpose, each containing not less than ten pounds, and marked, stamped, and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe; and all sales made by manufacturers of oleomargarine, and wholesale dealers in oleomargarine shall be in original stamped packages.” " • The plaintiff’s brand ivas approved by the Commissioner of Internal Revenue January 19, 1904, and prior to the enactment of the meat inspection law or-the pure food law. The label in question has always remained thus approved. On June 30, 1906, Congress passed both the meat inspection law (Act June 30, 1906, c. 3913, 34 Stats. 669, 674) and the pure food law (Act June 30, 1906, c. 3915, 34 Stats. 768 [Comp. [505] St. 1916, §§ 8717-8728]). On April 4, 1907, the Department of Agriculture having taken charge of the inspection of the oleomargarine factory of the Blanton Manufacturing Company under the claim that its oleomargarine was a meat food product, the Secretary of Agriculture approved the labels on the packages then in use under the trade-name “Creamo Oleomargarine.” On January 6, 1908, the complainant made application to register the trade-mark “Creamo Oleomargarine” in the United- States Patent Office. This registration was allowed on January 9, 1908. The Blanton Manufacturing Company continued for years to sell its goods under this label with the express approval or acquiescence of the Treasury and Agricultural Departments. On July 8, 1912, the defendant was expressly officially notified of the approval of the trade label “Creamo Oleomargarine” by the Agricultural Department. For many years the company has spent an average of $7,500 a year in advertising the commodity under this name and in the past 10 years has spent $75,000 in that way, but the Department commenced to complain in about 1912 of the use of the word “Creamo.” Up to that time the Blanton Manufacturing Company had spent between $35,000 and $40,000 in such advertising. On October 2, 1912, the Chief of the Bureau of Animal Industry wrote the Blanton Manufacturing Company that the use of “Creamo” was considered deceptive and misleading, and the Bureau must therefore decline to continue permitting the use of this name in connection with oleomargarine. The letter recited that the Bureau’s approval of the use of this name was formerly given. On February 10, 1914, the inspector in charge at St. Louis notified the Blanton Manufacturing Company that on and after March 1, 1914, “the use of that label will not be allowed.” Thereupon the Blanton Manufacturing Company brought suit in the ■court below against Dr. James J. Brougham, chief inspector in the city of St. Louis of the Bureau of Animal Industry of the Department of Agriculture, Arthur N. Stankey, local inspector of said Bureau in charge of the inspection at the manufacturing plant of the Blanton Manufacturing Company, Dr. Alonzo D. Melvin, Chief of said Bureau, and Hon. David F. Houston, Secretary of Agriculture of the United States, praying that this “court may grant to plaintiff a writ of injunction * * * perpetually enjoining and restraining said defendants from interfering with the use and enjoyment by plaintiff (in interstate commerce or otherwise) of its said trade-mark ‘Creamo1’ Oleomargarine upon its labels now in use in its said business as above described, and from attempting to deprive plaintiff of the use thereof,” and for general equitable relief. Dr. Brougham and Arthur N. Slankey were served with process and filed answer, hut the Secretary of Agriculture and the Chief of the Bureau of Animal Industry were not found in the district and did not appear. The case was tried upon the issues joined- as between the complainant and Messrs. Brougham and Stankey, and the court found the issues in favor of the plaintiff and enjoined Dr. James J. Brougham and Arthur N. Stankey, their agents, ■successors, and employes, from interfering with the use and enjoyment by the plaintiff, its successors, and assigns, in interstate commerce and otherwise of the said trade-mark “Creamo” upon stencils and la [506] bels as theretofore approved and used on packages of various sizes for the sale of oleomargarine, and Messrs. Brougham and Stankey appeal. [1] It is first contended by the appellant that no injunction could rightly have been granted against the appellants, because such an injunction could not have been properly granted against the Secretary of Agriculture. In St. Louis Independent Packing Co. v. Hon. David F. Houston, — C. C. A. —, 242 Fed. 337, we recently had occasion to fully examine this question, and following that case we hold that this injunction could properly have issued against the Secretary of Agriculture, had he been served or appeared, and he not being within the jurisdiction of the court, but having his subordinates there, who, it it was alleged, were violating the law or about to violate it, upon a proper showing an injunction could issue against them. [2] The plaintiff first insists that its business is governed wholty by the Oleomargarine Law (24 Stat. 209; 32 Stat. 193) and that neither the Secretary of Agriculture nor the Bureau of Animal Industry has under the Meat Inspection Law any power or control over the com-, plainant’s business. The Oleomargarine Law was enacted under the power of Congress (Constitution, art. 1, § 8, par. 1): “The Congress shall have power to lay and collect taxes, duties, imposts and excises.” While the Meat Inspection Law and the Pure Food Law were enacted under the power conferred by Const, art. 1, §■ 8, par. 3: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Whatever may have been the ulterior purpose in the passage of the Oleomargarine Law, it cannot be held that anything in it tended to substract any power subsequently conferred on the Secretary of Agriculture under the Meat Inspection Law, or upon the Secretary of the Treasury, the Secretary of Agriculture, or the Secretary of Commerce and Labor under the Pure Food Law. The first, the Oleomargarine Law, was enacted in the exercise of the taxing power, and this could not prevent Congress, under the power to regulate commerce, enacting the Pure Food Law and the Meat Inspection Law in the interest of the public health or welfare. [3,4]' The Meat Inspection Law, in what may be called the preamble (34 Stat. 669, 674), declares thát it is enacted for the purpose of preventing the use in interstate or foreign commerce as hereinafter provided of meat and meat food products which are unsound, unhealthful, unwholesome or otherwise unfit for human food, and further provides (page 675): “That for the purposes hereinbefore set forth the Secretary of Agriculture shall cause to be made by inspectors appointed for that purpose an examination and inspection of all meat food products prepared for interstate or foreign commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment.” And it provides for marking the same “Inspected and Passed,” or-“Inspected and Condemned,” and the consequences. Meat food products were not more definitely defined and the Secretary of Agriculture [507] in July, 1910, secured the opinion of the Attorney General as to the true definition. 28 Op. Atty. Gen. 369. It is provided in the Meal Inspection Law (34 Slat. 678): “Said Secretary of Agriculture shall, from time to time, make such rules ami regulations as are necessary for the efficient execution of the provisions of this act, and all inspections and examinations made under this act shall be such and made in such manner as described in the rules and regulations prescribed by said Secretary of Agriculture not inconsistent with the provisions of this act.” The Attorney General, first having held that the term “similar establishments” as used in the law was intended to include all establishments that were not specially mentioned in' which the animal is slaughtered or the carcasses or meat are prepared or in which the meal food product is manufactured, then held that the term “meat food product” does not merely embrace a food which consists wholly of the meat of an animal and that the determination of the meaning of the term “meat food product” is essential to the proper enforcement of the Meat Inspection Law, and as Congress has not defined the term, and it has no well-defined meaning, but is one of common use, and Congress having vested in the Secretary of Agriculture the power to make such rules and regulations as may be necessary for the efficient execution of the provisions of the act, the power to determine what manufactures are meat food products rests in the Secretary of Agriculture, subject to the restriction that the definition of the term adopted be not clearly or unquestionably outside ihe intent of the act. It may not be without importance to state that the opinion was delivered in a case of a compound which consisted of 80 per cent, cotton seed oil, clearly not a meat food product, and 20 per cent, of oleo stearin, a meat food product. There is no evidence that oleomargarine is not a meat food product, and we regard it as a matter of common knowledge that it is such a product, and clearly, therefore, its manufacture comes within the language of the Meat Inspection Law. • The Meat Inspection Law (34 Stat. 676) provides: “No such meat or meat food products shall be sold or offered for sale by any person, lirm, or corporation in interstate or foreign commerce under any false or deceptive name; but established trade name or names which are usual to such products and which are not false and deceptive and which shall be approved by the Secretary of Agriculture are permitted.” We are not desirous of deciding more than is before us, and must pass upon the question whether the Department of Agriculture could pass upon and approve a trade-name under this last statute, which we find “Creamo Oleomargarine” was and is, and approve it in 1907 and again in 1912, and later, after an established business had been built up under that name, and a vast sum of money expended in the business, with or without evidence, change its ruling, and refuse, to allow the use of the trade-name. It is not claimed, as we understand it, that the public was deceived by the use of the name “Creamo Oleomargarine.” The use of it is objected to upon its similarity to the word “cream,” and upon the assumption that some of the public may be deceived into believing that [508] cream is contained in the oleomargarine. The word is not “cream,” but “Creamo.” It is a rule that words merely descriptive cannot constitute a trade-mark, because descriptive words cannot be expressly appropriated, and that it is essential to a valid technical trade-mark that the words or phrases be used in a purely arbitrary or fanciful way as applied to the goods in question. “Creamo” is not a word in common use among English-speaking people, but is such a fanciful word used by the complainant. But, even if the term had been “Cream Of,” it would not be objectionable as a brand upon manufactured goods. There is a well-known brand of cigars known as “Cremo Cigars.” “Cream of Wheat” is a brand used for breakfast food, and “Cream Baking Powder” is a well-known brand of that article. No one has ever assumed there is any cream in the cigar, in the Cream of Wheat, or in the Cream Baking Powder. Could the Department of Agriculture approve the use of the label “Creamo Oleomargarine,” as provided in the Meat Inspection Law, and then, after a trade had been built up and extended under that name, and vast sums of money expended in advertising it, change its ruling and forbid its use unless 10 per cent., for instance, of cream was used in the manufacture? We are constrained to say that we do not think any such'power was vested in the Secretary of Agriculture. The decree of the District Court was right, and it is affirmed.