The tug was employed by the charterer on the night of October 28th, towing for the charterer two derricks loaded with marble, when the captain discovered the steamship Arizonan on fire, and went to her rescue, mooring his tow at a neighboring dock. The tug aided in salving the Arizonan, and, while the immediate and substantial services was short, she remained with the salved vessel until the following day, and did not deliver the derricks at their destination. The charterer made such delivery by other means. The charterer paid the stipulated hire for the tug during the time she was rendering the salving services. Owner and charterer each claim the sum awarded for the salving services of the tug. The general rule is that the owner is entitled to such award, unless there is a demise of the tug, or the contract of hiring stipulates to whom it shall belong. In the case at bar the owner agreed to furnish the charterer "with the services of the tugboat * *fully manned and equipped," and paid the members of the crew for their services. They were the servants of the owner. The fact that the owner selected them, in whole or in part, from the charterer's night crew, did not change the legal relation. The charterer urges that the agreement gave it the exclusive right to the services of the tug, and thereby excepts the case from the general rule above stated. But a charter party contemplates that the charterer shall have the whole and exclusive use of the vessel, whether or not there be a demise of the ship. In case of a demise the charterer has possession, whereby right of use is given. If the charter party is less than a demise, the charterer is entitled to exclusive use, but not to possession. Here the owner did not undertake to furnish possession, but to furnish the services of its servants and a vessel retained in its possession. Therefore it is concluded that the mere fact that the charterer was entitled to the exclusive use does not differentiate it from rights under a charter amounting to a demise or less than a demise. It would be entitled to exclusive use in either case. The charterer's contention that its right of use is as exclusive as if it accrued under a demise is correct, but the vice of the argument, as applied to the claim to the award, is that the charter party is assumed to be tantamount to a demise. If the Merritt Company stood to the owners and tug in the relation of a lessee, it was subject to grave liabilities, which the contract does not impose, and which the charterer would disclaim. Certainly, for the negligent acts, and, within the scope of his employment, the wrongful acts, of the master, the charterer would not admit responsibility. Would the charterer deem the owner relieved from liability for culpable faults of navigation on the part of the master or crew, and acknowledge itself as the party liable to respond therefor? Would the charterer admit that the legal status of each contracting party was what it would be in the case of a demise? If the master, after tying up the tow, negligently collided with another vessel while going to or rendering the salvage service, would the charterer admit liability to the owner or a third person injured thereby? The contract imposes no such liability, and it is quite certain that the charterer would disclaim it. The charterer, in its present contention, seeks to gain the profit accruing from a certain legal status, while absolved from the legal duties and liabilities that pertain to such status. But they may not be disjoined. The charterer did not send the tug to the fire, nor assent thereto. The use to which the master put the tug was not a use which the charterer designated, nor was the master's act incidental to such use. There can be no salvage service unless the thing salved be in danger, and the master of the tug voluntarily put himself, his crew, and the tug under the influence of such danger. The charterer took no risk of it. It did not command it. The master exercised the authority impliedly conferred upon him by his principal. The owner was such principal. The master acted for his principal. He hazarded his principal's servants and property, and perchance his insurance. He involved his principal in all liability for injury to any person whomsoever, flowing from any unlawful act of his. The very danger of the tug in salving a burning ship is one of the elements considered in ascertaining the award. The risk was not that of the charterer, whether it pertained to the persons or property involved in the service. These considerations are fundamental, and illustrate the legality of the charterer's present claim, measured by his actual and legal relation to the tug and crew that did the acts which earned the award. It is urged that the owner accepted the per diem compensation for the time occupied by the salving service. But it is thought that the owner is not thereby estopped from claiming the award. For all that appears it was an oversight. It does not appear that there was any controversy between the parties in that regard, or that the owner, in terms, asserted that the tug was at the time in the charterer's service, and that it was legally bound to pay the stipulated hire. Liability to passengers, freighters, or charterers by deviation or delay by reason of diversion to perform a salving service is an element considered in fixing the award. If the charterer has suffered legal damage, the owner must respond for the same; and if, under a mistake of fact, the charterer has paid for unearned service of the tug, that may be recovered. Pursuant to these views, the decree will provide for the payment of the award to the owner and crew in the proportion heretofore directed. INTERNATIONAL SILVER CO. v. RODGERS BROS. CUTLERY CO. et al. (Circuit Court, W. D. Michigan, S. D. February 17, 1905.) 1. TRADE-MARKS UNLAWFUL COMPETITION-TRADE-NAMES. Complainant's predecessors having created a large business in the manufacture and sale of tableware under the trade-names "Rogers Bros.," "Rogers Cutlery Co.," and other names in which the word "Rogers" or "Rogers Bros." appeared, defendants organized a corporation for "buying, selling and dealing in cutlery and tableware at wholesale and retail," in which two of the original incorporators were named "Rodgers," and immediately placed on the market knives manufactured by an independent corporation, stamped, "RoDgers Bros. Cutlery Co." At this time neither the corporation nor the individuals composing it had any skill in manufacturing tableware, and no established business therein, and, had they eliminated the word "RoDgers" from their trade-mark, there would have been nothing to recommend their goods, other than the excellence of the product. Held, that defendants' use of such name was prima facie fraudulent, entitling complainant to a preliminary injunction. [Ed. Note.-Unfair competition, see notes to Scheuer v. Miller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.] 2. SAME. The names "Rogers" and "RoDgers" being idem sonans, the mere capitalization of the "d" for the purpose of calling attention to the distinction between the names was insufficient to prevent confusion and deception of the public as to the manufacture of the goods. In Equity. Opinion on application for preliminary injunction. Stephen H. Clink, for other defendants. WANTY, District Judge. This is a suit, brought by the complainant, the successor of several companies which have for many years carried on an extensive business in manufacturing tableware, spoons, forks, and knives, under the trade-names of "Rogers Bros.," "Rogers Cutlery Co.," and other trade-names in which the word. "Rogers" or "Rogers Bros." has appeared, until the goods manufactured by the complainant have come to be known as "Rogers goods" and "Rogers Bros. goods." The defendant corporation was originally composed of Lincoln Rodgers, John Rodgers, and Clarence A. Goldsborough, and was formed for the purpose of "buying, selling and dealing in cutlery and tableware at wholesale and retail." It has placed upon the market knives manufactured by the Muskegon Cutlery Company, on which is stamped: "RoDgers Bros. Cutlery Co. The complainant asks that the defendant be enjoined from making, marking or selling, or in any manner disposing of any spoons, forks or knives, or other table ware stamped with the mark "RoDgers Bros. Cutlery Co.," or any other mark or marks on which the word "Rogers" or "Rogers Bros." (spelled with or without the "d") are a characteristic part, and from using any such mark upon or in connection with such goods, or on the boxes, wrappings, or labels containing or designating the same, and also from using the corporate name "Rodgers Bros. Cutlery Co." in the manufacture, procurement, or selling of tableware. The authorities which have been cited by counsel for complainant and defendant are very numerous, but are all to the effect that no man has a right to sell his goods as and for the goods of another, and thereby work a fraud upon both the public and his rival in trade, nor has he the right to willfully place it in the power of another to do so. The difficulty has been in applying this rule to the various facts appearing in the different cases. The authorities are gathered in the notes to Scheuer v. Muller, 74 Fed. 225, 20 C. C. A. 165, and Lare v. Harper Bros., 86 Fed. 481, 30 C. C. A. 376, and in the Rogers' Cases, where this trade-name and trade-mark have been a fruitful source of litigation. In the case of Royal Baking Powder Company v. Royal (C. C. A.) 122 Fed. 337, we find a review of the cases, and the principles upon which the judgment in this case must go, and it is not necessary to repeat the reasoning there so well set out by Judge Lurton. In the case at bar neither the corporation defendant, nor the individuals composing it, have any skill in the manufacturing of cutlery or tableware, and no established business therein. If they had taken any other name for the corporation, or had left out the word "Rodgers" from their trade-mark, there would have been nothing to recommend the goods they sell, except the excellence of the product, which in time might give any trade-mark they chose to put upon their goods a value in the trade. They, however, chose a trade-mark which already had a value, and the property in which was in the complainant, for the word "Rogers," connected with cutlery and tableware, has come to have a secondary significance which is entitled to protection. The defendant does not manufacture the product it sells, and if the Muskegon Cutlery Company, which does manufacture it, should use the name "Rodgers" on any of its goods, the reason for such use would be so apparent that it could scarcely be argued that the complainant had not the right to have such use enjoined. I can see very little difference in the stamping and selling of these same goods by the defendant. They are not selling "Rodgers goods," nor their own, but they are selling the Muskegon Cutlery Company's goods, masquerading under the trade-name which indicates they are manufactured by the Rodgers Bros. Cutlery Company. It cannot be supposed that the corporation defendant, in stamping the name "Rodgers Bros. Cutlery Co." on its goods, could have any other purpose than inducing the public to believe that the product made for it by the Muskegon Cutlery Company is "Rogers goods." This is apparent when it is understood that neither it, nor any stockholder in it, has had any design of making the goods so stamped, but stamped the goods of another manufacturer for the purpose of selling them, not as the goods of the corporation that made them, but as the goods of the Rodgers Bros. Cutlery Company. This must have been done to have the goods appear to be "Rogers goods," and "Rogers goods" are known to the consumer to be those of the complainant, not those of the Muskegon Cutlery Company or the defendant. The wholesalers, jobbers, and retailers would probably not be deceived by this trademark; but the ultimate purchaser, the housewife, and other customers of the retailer who want and call for "Rogers goods," can be furnished with the goods manufactured by the Muskegon Cutlery Company, and stamped for and sold by the defendants with this stamp, as readily as they can with articles manufactured by the complainant, bearing the "Rogers" trade-marks. This is not the case of a man using his surname in a business open to him, and the numerous cases upholding such a right do not apply, but the controversy here is ruled by the principles laid down in such cases as Garrett v. T. H. Garrett & Co., 78 Fed. 472, 24 C. C. A. 173, where corporations have many times been enjoined from the use of a name taken from that of its stockholder or officer. The fact of a manufacturing corporation taking a name which has already become descriptive of the origin of the goods to be sold may of itself be sufficient evidence of an intent to mislead. But here the very purpose of adopting the name used by this corporation for a trademark was to sell the product of a manufacturing company as the goods of another. It is claimed that the stamp is put on the goods by the defendant because the word "Rodgers" means honest dealing and superior workmanship in Michigan, Wisconsin, and Minnesota, where sawmill machinery which has for many years been made by the members of the family of Rodgers in Muskegon has gone. What influence the reputation as manufacturers of sawmill machinery could have in the cutlery and tableware trade is not apparent. It would require some inquiry to find that the Rodgers Bros. Cutlery Company has for a stockholder any of the sawmill manufacturers, and further inquiry to ascertain that such stockholder controls the business of the corporation, even if any one in the cutlery and tableware trade ever heard the name of any manufacturer of a sawmill at Muskegon. The name "Rogers" in the tableware and cutlery. trade could scarcely be thought to point to the manufacturers of sawmills, but the defendant knew it did point to the "Rogers goods," so called, and showed their appreciation of the fact by capitalizing the "d" in the name as stamped on the knives put out by it. This was probably done to show a distinction between the names, from which it might be inferred that there was no design to appropriate the good will belonging to the complainant; but the names are idem sonans, and this change would not prevent the confusion which is certain to exist where the goods of complainant and defendant come into competition. Counsel for the defendant urged on the hearing and in his brief the cases of The Knights of Pythias, 113 Mich. 133, 71 N. W. 470, 38 I.. R. A. 658, Royal Baking Powder Co. v. Royal, 58 C. C. A. 499, 122 Fed. 337, International Silver Co. v. Simeon L. and George Rogers (C. C.) 110 Fed. 955, and International Silver Co. v. Wm. H. Rogers |