Rogers v. Wm. Rogers Manuf'g Co.

SHIPMAN, Circuit Judge. William A. Rogers has sold for a number of years, in the city of New York, small hardware and cheap spoons. In July, 1894, he engaged R. Wallace & Sons Manufacturing Company, a manufacturer of silver-plated ware, to make for him and prepare for market teaspoons, tablespoons, and forks plated uiioii steel. . They were put up in boxes of the ordinary size and shape used for similar ware, which were labeled, “Wm. A. Rogers, N. Y.,” and the stamp “Wm. A. Rogers” was upon the hack of each [1020] article. They were called “Brunswick,” and were the cheapest known grade of silver-plated ware. The manufacturer made and sold the same grade of goods at a very cheap price under the name of “Victoria.” The defendant sold the Brunswick at a low price, but higher than the manufacturer asked for his Victoria, and for one-fourtli or one-fifth of the price which the complainant obtains for its genuine Rogers goods. In October, 1894, Rogers stopped rhe manufacture of Brunswick goods, because they were too poor, and obtained goods which he named “Belmont,” which were also of a low grade, but of a better quality than the Brunswick, and were labeled and stamped in the same way. There are indications in the affidavits that he was trading upon his own name to deceive the public. For example, in one of his letters, which gave his prices, and solicited business, he says, “These prices way below any" of the Rogers now on the market, and you will find them, at these prices, big sellers.” In anothei letter of the same kind he says, “Prices way below any Rogers goods on the market.” On the other hand, he said in another letter, “In regard to saying they are as good as the other Wm. Rogers, I cannot say that, as neither is the price.” He undoubtedly knew that the stamp could and would be used by dishonest peddlers and dealers in cheap ware to deceive customers, but the affidavits do not afford sufficient basis for a finding that he started in the business and used the stamp for.the purpose of making the public believe that his washed-steel Brunswick goods were genuine Rogers goods. There are some indicia of an unworthy purpose to gain an advantage from a name well known to the purchasers of silver-plated ware, but the affidavits do not contain sufficient facts to justify the conclusion that Rogers was using his name unfairly and dishonestly in the business in which he was entitled to use it. The order of the circuit court is reversed, with costs.