are esteemed perishable in their own nature, I jured as to be of no substantial value when unless it amount to 7 per cent on the whole brought to the port of destination. aggregate value of such articles, and happen by stranding." At the end of the last paragraph of the policy, next before the formal conclusion, were printed these words: "Partial loss on sheet iron, iron wire, brazier's rods, iron hoops and tin plates, is excepted." The shipment consisted of 500 boxes of tin plates, invoiced and valued together at one SUN. The vessel was wrecked; all the plates damaged more or less; and some of them totally destroyed. Chief Justice Shaw ruled, for the court, that the exception did not come under the memorandum clause; that it recognized a distinction between tin and brass goods liable to tarnish, and memorandum articles liable to decay; and that the natural construction of the exception was "that it leaves the insurer liable for all total losses; but it makes no distinction between absolute and constructive total losses; and in case of a constructive total loss, which gives the assured a right to abandon, and he exercises the right, it becomes a legal total loss, as if absolute in its nature." The insurers were held liable for a constructive total loss under the 50-per cent rule. In the case before us wire of all kinds was specifically exempted by the memorandum clause, and the exemption was relaxed by the rider in respect of absolute, that is, actual, loss of a part. *If the contract in that case had been in terms and arrangement the same as the contract in this, it does not follow that the same result would have been reached. In the United States (and herein is a material difference between the jurisprudence of the two countries), the general rule is that a damage exceeding 50 per cent justifies abandonment and recovery as for constructive total loss. Marcardier v. Chesapeake Ins. Co. 8 Cranch, 39, 3 L. ed. 481; Le Guidon (Paris, 1831) chap. VII. art. 1; chap. V. art. 8. But this principle is not applicable to memorandum articles in respect of which the exception of particular average excludes a constructive total loss. There is no pretense here that this wire, with some small exceptions duly allowed for, did not exist at Key West, and did not arrive at Velasco in specie, and, as to a large part, with its original character unimpaired." Abandonment is necessary when the loss is only constructively total, and under this policy no right of abandonment existed at the time of the disaster or afterwards, by the exercise of which the assured could turn this partial loss in fact into a total loss by construction. The salvage charges at Key West were paid by the underwriters as incurred to avert an impending actual total loss of the whole subject of the insurance. It was to their particular interest, as well as to the general public interest, that the goods should be saved, and it is apparent that plaintiff could not injure their market by refusing to receive them, and then claim that their value was determined by the price they brought at forced sale. ered. Counsel conceded that the cargo was damBut we must not be understood as accept- aged to an amount exceeding 50 per cent, ing the views expressed in Kettell's Case, and that, therefore, there was a constructive great as is the weight attaching to the ut- total loss according to the American rule apterances of the distinguished judge who de- plicable to non-memorandum articles. But livered the opinion. We do not think the there was not an actual loss of the whole, words, "partial loss excepted," had any other and by the memorandum and rider the inmeaning as applied to tin plates than if ap-surance company was exempted from liabil plied to articles having an inherent tendency to decay. Tin plates may not be perishable ity, except for the actual loss of a specific in their nature in the sense of liability to part, and for that plaintiff has duly recov corporeal destruction, but their original character as tin plates is perishable by reason of liability to corrosion and rust. And this may explain why the words, "and happen by stranding," were omitted from the exception. It appears to us that the natural meaning of the exception was to exempt the underwriters from liability for an actual partial loss, and, therefore, for a constructive total loss, which involves an actual partial loss, and a remainder transferred by abandonment. Mayo v. India Mut. Ins. Co. 152 Mass. 172, 9 L. R. A. 831, 25 N. E. 80, follows the prior case, but the court expressly refused to decide "whether in this commonwealth there can be no total loss of a memorandum article, if any part of it arrives at the port of discharge in specie." It would subserve no useful purpose to attempt a review of the English cases on this subject. If in England a plaintiff may recover for a constructive total loss of memorandum articles, it is when they are so in The circuit court correctly ruled that under the terms of the policy plaintiff could not recover for a constructive total loss of the goods insured; and, inasmuch as a large part of the goods reached Velasco in specie, a substantial part of them being wholly uninjured, was right in declining to permit the jury to pass on the question of actual total loss. There is nothing taking the case out of the general rule. The forced sale certainly does not affect it. After some previous jettison the cargo passed through the wreck, and the bulk of the wire, some damaged and much uninjured, arrived at the port of destination. The consignee, which was also the manufacturer, refused to accept it, and declined to put an end to the proceedings which were instituted to its knowledge. If there had been a constructive total loss and a sufficient abandonment prior to the sale, defendant was then liable. As there was not, and no right to abandon or acceptance of abandonment, the goods were at plaintiff's risk, and defendant was not responsible for any loss plaintiff sustained by the sale. But although, as we have seen, plaintiff had no right to abandon, and although defendant specifically refused to accept an abandonment, it is contended that defendant transshipped the wire, and that such transshipment amounted to an acceptance of abandonment. The circuit court of appeals was of opinion that the forwarding from Key West to Velasco was done under the authority and with the approval of the captain of the Benjamin Hale. As the cargo was in a condition for transshipment, and there was opportunity to effect it, defendant rightfully insisted that it was the duty of the master to forward it to the destined port. Yet, even if the underwriters chartered the Cactus and forwarded the cargo, we agree with both courts that neither that nor any other act disclosed by the evidence, would have authorized the jury to find that defendant had accepted the attempted cession of the cargo. The sue and labor clause expressly provid ed that acts of the insurer in recovering, sav. ing, and preserving the property insured, in case of disaster, were not to be considered an acceptance of abandonment. Whether regarded as embodying a common-law principle, or as new in itself, the clause must receive a liberal application, for the public interest requires both insured and insurer to labor for the preservation of the property. And to that end provision is made that this may be done without prejudice. The circuit court of appeals well points out that at Key West there was no agent of the assured, no adequate means of protection, and no market; while at Velasco there were excellent facilities for protection and handling of cargo, easy access to the company's head agency, and a good market; and it was the port of destination. If, then, it was the insurer that carried the property, to be preserved and carried, to Velasco, where it was offered to the consignees, such labor and care rendered in good faith did not operate as an acceptance of abandonment, and especially as there was no right to abandon and a distinct refusal to accept. (179 U. S. 19) EMILIE SAXLEHNER, Petitioner, บ. EISNER & MENDELSON COMPANY. Trademarks in name "Hunyadi"-abandonment of right-laches-infringement by use of one of several words word becoming generic-abandonment by party having exclusive sale-infringement of labels. 1. 2. 3. 4. 5. 6. 7. 8. The name "Hunyadi," being neither descriptive nor geographical, but purely arbitrary and fanciful, as applied to medicinal waters, is the proper subject of a trademark. To establish the defense of abandonment It is necessary to show, not only acts indicating a practical abandonment, but an actual intent to abandon, since acts which, unexplained, would be sufficient to establish an abandonment, may be answered by showing that there never was an intention to give up and relinquish the right claimed. The use of one only of the words which constitute a trademark may be sufficient to constitute an infringement, without appropriating all the words included in it. Failure to prevent others from appropriat ing the word "Hunyadi" as a name for mineral waters until it had become a generic name does not show an abandonment of the right of the owner of a trademark in that word, when he made every effort in his power to put a stop to the use of it by other per 10. Acts of the insurer are sometimes construed as an acceptance, when the intention to accept is fairly deducible from particular conduct, in the absence of explicit refusal. 9. Silence may give rise to ambiguity solvable by acts performed. Here, however, defendant refused to accept, and there was no ambiguity in its attitude; and what was done, if done by it, was no more than it had the right to do without incurring a liability, expressly disavowed. There was nothing to be left to the jury on this branch of the case. Some further suggestions are made, but they call for no particular consideration. Judgment affirmed. sons. An abandonment of a trademark by a party having exclusive sale of the goods to which it was applied under a contract with the owner, which he reserved the right to cancel upon notice, is not binding upon him unless It was done with his knowledge and acquies cence. The laches of the owner of a trademark in the word "Hunyadi" is sufficient to defeat his rights therein, when by twenty years of inaction he has permitted the use of the word by infringers in this country, who have been using it under licenses from the Hungarian government, until the name has become generic as indicative of the whole class of medic inal waters for which it is used. The supposition on the part of a foreign owner of a trademark, that a person having the exclusive contract for the sale of his goods in this country will protect it against infringers, but who is not authorized to abandon it, will not relieve him from the effect of his laches when infringers are allowed to use the word for many years until it becomes a generic name. 11. The right to a trademark, once lost by permitting Infringers in this country to use it until the word has become generic, is not regained here by a change of the law of the country of its origin, by which the owner's right to it is established there after it has been held to be public property for many years. Laches as a defense in case of an active and continuing fraud must amount to assent or acquiescence. A right of action for fraudulent use of labels in this country is not defeated on the ground of laches by failure for many years to assert it, when during that time the owner was making repeated, persistent, and for a long time unsuccessful, efforts in his own country to establish his rights. Liability for Infringement of a label and bottle is not avoided by the infringer's use of an additional label which is a mere importer's private mark. [No. 29.] one Ignatius Markus, being the proprietor of a certain well within the limits of Buda Argued March 22, 23, 1900. Decided Octo- Pesth, applied to the proper authorities and ber 15, 1900. N WRIT OF CERTIORARI to the Unit 0ed States Circuit Court of Appeals for ing that the name was distinguished from the Second Circuit to review a decree affirm ing in part but reversing in part a decree of the Circuit Court for the Southern District of New York on a bill in equity for an injunction against infringing a trademark and labels. Reversed. See same case below, 63 U. S. App. 139, 145, 91 Fed. Rep. 536, 33 C. C. A. 291. Statement by Mr. Justice Brown: This was a bill in equity filed in the circuit court for the southern district of New York by the widow of Andreas Saxlehner, deceased, a resident of Buda-Pesth and a subject of the King of Hungary, against the Eisner & Mendelson Company, importers and wholesale dealers, to enjoin the defendant from selling any water under a name in which the word "Hunyadi” occurs, or making use in the sale of bitter waters of labels, in form, color, design, and general appear ance, imitating the labels used by plaintiff in the sale of Hunyadi Janos water. was granted the registration of the name "Hunyadi Matyas" as a denomination of the waters of his spring, such authorities holdthat of the "Hunyadi Janos;" that "Hunyadi Janos" when anglicized, is John Hunyadi, the name of a celebrated Hungarian hero, and that the name "Hunyadi" is a common one in Hungary, and means of or from Hunyad, and that for this reason it is of itself incapable of exclusive appropriation by anyone, being a common descriptive personal name, and also used to designate certain districts and towns in Hungary; that in the year 1889 the word had become a generic term, describing a kind of bitter aperient water, the peculiar product of a large number of wells in Hungary; that the shape of the bottle and the peculiarities of the label have become common property, and were adopted by everyone who sold the Hunyadi water, whether under the name of "Hunyadi Janos," "Laszlo," "Matyas," "Arpad," etc., and that to the time of his death Saxlehner had never asserted or made any claim to the exclusive use of his style of bottle, or capsules, or labels; that in 1886 or 1887 the The bill averred in substance that plain- Apollinaris Company brought suit against tiff's husband, Andreas Saxlehner, was, un- the American agents of several of these watil May 24, 1889, the proprietor of a certain ters and obtained temporary injunctions, well within the city limits of Buda-Pesth, which were subsequently dissolved upon eviand that in 1863 he began to sell the waters dence that the word "Hunyadi" was used in of the same in the market under the name or Hungary as part of the name of a number of trademark of "Hunyadi Janos;" that as his different mineral waters, that Saxlehner rebusiness increased he acquired additional fused to join with or aid the Apollinaris territory, opened new wells, adopted a novel Company in opposing a dissolution of such style of bottles and a peculiar label, and that injunctions, and that thereafter these waters the water soon became known in all the mar- were sold freely, openly, and continuously kets of the world under the name of "Hun- in competition with the "Hunyadi Janos" in yadi Janos," or in England and the United the bottles and with the labels and capsules States under the name of "Hunyadi" alone; affixed thereto as before stated, with the that in March, 1876, Saxlehner entered into knowledge, consent, and acquiescence of Saxa contract with the Apollinaris Company of lehner and his agents; that defendant, a London, under which such company was giv- Pennsylvania corporation, entered into a conen the exclusive right to sell this water in tract with the owners of the "Hunyadi Great Britain and the United States, and Matyas" spring, and obtained the exclusive that such contract was not terminated until right to import their waters into the United March, 1896; that this company used a label States for the term of twenty-five years; of similar design, but of different color, and that in 1890 it began to sell this water in that large quantities of this water were ex- like bottles and with like capsules and labels ported by Saxlehner through such company affixed thereto as now claimed by the plainand sold in the United States under the name tiff herein to be in violation of her claimed of Hunyadi water; that Saxlehner died May rights, which bottles, capsules, and labels 24, 1889, and plaintiff succeeded him in the were similar to those in which the said "Hunbusiness; that prior to his death Saxlehner yadi Matyas" water had been first imported, obtained the registration in the Patent Of- and that this was done with the consent of fice of the name "Hunyadi" as his trade- the American agent of the Apollinaris Commark; that the defendant, knowing of these pany, who expressly stated that he had no facts, had unlawfully imported and sold bit- objection to the label used by the defendter water not coming from plaintiff's wells, ant, nor to the way in which it was adverin bottles of identical shape and size as those tising the "Hunyadi Matyas" water; that in used by plaintiff, and with labels in "close 1889 it also became the agent for sale in the and fraudulent simulation of your orator's United States of the "Hunyadi Arpad," trademark," but under the name of "Hunyadi "Hunyadi Laszlo," and "Hunyadi Bela" waLaszlo" or "Hunyadi Matyas,"-all in defi-ters, and began to sell the same in large quanance of plaintiff's right, and with the design of imposing the waters upon the public as those of the plaintiff. The answer denied the material allegations of the bill, and averred that in the year 1873, tities; that these waters were put up for sale and sold in bottles similar to those of the "Hunyadi Janos," with like capsules and labels; that these waters were sold in open competition with the "Hunyadi Janos" until some time in 1893, when plaintiff stopped said | this water was exported to and sold in the competition in part by purchasing the Arpad various countries of the world, a different and Bela springs, and thereupon revoked the custom concerning its appellation sprung up agency of the defendant to sell such waters; in different countries, the Latin races using that in 1877 Saxlehner applied to the Com- the word "Janos" as the common appellation missioner of Patents for the registration of of the water, it being known as "Eau de the words "Hunyadi Janos" as a trademark; Janos" or "Aqua di Janos," while in England that such trademark was registered Septem- and the United States of America the name ber 11, 1877, by which proceeding he aban- of "Hunyadi" became its common appelladoned all claim and assertion of right to the tion, it being known as Hunyadi water. word "Hunyadi" in and of itself, and that it had for many years previously been a generic term to designate this class of waters. The answer further alleged that the defend: ant, in order to designate the waters sold by it, and to secure additional protection to the label used by it, registered the trademark "Hunyadi Matyas," since which time the defendant has used such trademark as stated therein, and in accordance therewith. In 1872, it seems that one Ignatius Markus discovered a spring upon a plot of ground leased by him, which also produced bitter water of similar quality, and shortly thereafter petitioned the municipal council of Buda, not only for permission to sell the water, which was unconditionally granted upon the report of the town physician concerning the quality of the water found, but also to be allowed to name this spring "Hunyadi Matyas," and to bring the water into commerce under that name. This was de As the case depended almost wholly upon questions of fact, a somewhat elaborate statement of the evidence becomes necessary; nied, upon the petition and protest of SaxIn 1862, Andreas Saxlehner discovered within the city limits of Buda-Pesth, Hun- the use of the name "Hunyadi." It was lehner, who claimed the exclusive right to gary, in a valley surrounded on all sides by said that the granting of the denomination hills acting as a natural barrier, secluding it "Hunyadi Matyas" to another spring "would from the outer world, a spring which was named by him the "Hunyadi" spring, and on the owners of the two springs and among the very likely, nay certainly, lead, both between January 19, 1863, the municipal council of consuming public, to unpleasant misunderBuda granted him permission to sell the water taken from such spring and to give the standings, which it is the duty of the authorities to avoid, and even to prevent. And spring the name of "Hunyadi," upon the pay; further, the fact that petitioner, notwithment of a small sum of money for hospital standing the many designations at his dispurposes. Soon after this he began to bot-posal, seeks to apply the name 'Hunyadi' to tle the water of his spring and to sell it un- his spring, undoubtedly shows the not very der the arbitrary name or trademark of noble intention on his part to avail himself* "Hunyadi Janos;" in other words, John Hun- of the great diffusion and good renown enyadi, a Hungarian hero of the fifteenth cen-joyed by the Saxlehner Hunyadi Bitter tury. Several wells were subsequently sunk by him in the same valley to the number of about 112, all of which produced water substantially of the same chemical combination, which is led through a system of pipes to large subterranean cisterns, from which it is taken and bottled. It soon began to be exported beyond the limits of Hungary to other European countries, and also to the United States. Spring, both at home and abroad, which, however, cannot be tolerated by the authori ties, and in the present case all the less, as it is a well-known fact that Mr. Saxlehner was able to secure this good renown to his spring only through many years' labor and at considerable expense." On a petition in appeal, however, to the minister of agriculture, in 1873, the decision of the council, which denied to Markus the perSaxlehner was not, however, the first one mission to use the name "Hunyadi Matyas" in Hungary to put up the bitter waters with was reversed because of certain omissions by which that kingdom abounds, but others were already sold in the market, one of them Saxlehner to conform to the local laws, and also because "Hunyadi Janos" and "Hunyadi being called "Hildegarde," and another "Franz Deak." Different bottles and labels Matyas" "represent two quite clearly differwere used for these waters, when Saxlehner ent names, which may stand without any inadopted, in conjunction with the distinctive fringement to each other." This spring was name of "Hunyadi Janos," a novel style of afterwards registered in Buda-Pesth by the bottle of straight shape with a short neck, to name of "Hunyadi Matyas," and thereupon the top of which was attached a metal cap- the proprietors of other wells began to sell sule bearing the inscription "Hunyadi Janos, their waters in Europe under the name of Budai Keserüviz Forrás," meaning "Hun- Hunyadi with an added name, and also with yadi Janos, bitter water of Buda," together the use of a close imitation of the red and with a supposed portrait of the hero stamped white labels. It did not appear, however, thereon. He also adopted a peculiar label that Markus sold any water or made use covering almost the whole body of the of the permission granted to him by the minbottle, divided into three longitudinal ister, or obtained a license from the local panels, the middle one of which bore authorities; but in 1876, the firm of Mattoni the same portrait in a medallion, with & Wille became the purchasers of the plot the name of "Hunyadi Janos" written of ground leased by Markus and several othin large letters on the top of the label, er adjoining plots containing springs, and the color of the middle panel being a red-in that year registered a separate trademark dish brown and the outer panels white. As and name for each of the six springs which they then acquired, among which was a trademark bearing the name "Hunyadi Matyas." In 1877 they began selling these waters in Hungary, claiming certain specific differences of composition of the various waters which recommended them for different purposes. In February, 1876, Saxlehner made a contract with the Apollinaris Company, Limited, of London, by which that company agreed to purchase a certain quantity yearly, and Saxlehner bound himself for a term, which finally expired in 1896, to give the company the exclusive right to sell his "Hunyadi Janos" water in Great Britain, United States, and other transmarine countries. The company agreed to purchase at least 100,000 bottles yearly until 1878, and at least 150,000 bottles thereafter at a stated price. In addition to this Saxlehner agreed not to fill any orders coming from the territory granted to the company, but to make them over to the company. A special label was designed to be used on the bottles sold by the company of substantially the same contents and characteristics, but of a different color, the body of the label being a dark blue, with a red or reddish brown central field. A narrow strip on the top of the label contained the name of the Apollinaris Company as the importer, and from the making of this contract large quantities of water bearing this label were exported and sold in the United States under the name of "Hunyadi Janos," or the shorter name "Hunyadi." After April, 1889, and until the cancelation of the contract in 1896, this company placed upon each bottle of Janos water which it sold in this country a red diamond containing these words: "The red diamond is the trademark of the Apollinaris Company, Limited, and is meant only to indicate that the mineral waters so marked are sold by the Apollinaris Company, Limited." name In 1887, Saxlehner caused the "Hunyadi" to be registered separately from "Janos" as a trademark in the United States Patent Office. In the statement accompanying this registration he was again careful to refer to the red and white or red and blue label upon which said trademark was used by him, and to repeat the caution that he did not in anywise intend by said registration to abridge his right to the exclusive use of said label as a whole, or to any of its fea tures. The Apollinaris Company embarked in the business of selling Hunyadi Janos water in the United States, but met with competition from one Scherer, who imported the water under the red and white label from Europe, buying it from parties who had purchased it from Saxlehner. The company sought to enjoin Scherer from so selling upon the ground of its exclusive right within the United States, but failed in the suit. The case was decided in 1886, and reported in 27 Fed. Rep. 18. In the same year Mattoni & Wille of BudaPesth consigned to one Andres in New York 121 cases of Hunyadi Matyas water taken from one of four springs purchased by them, one of which was the original Markus spring above mentioned. About the same time the firm of Ignatz Ungar & Son began to sell waters from a spring owned by them, which was designed "Hunyadi Arpad," through one Joseph Ungar as their agent. This water was put up in an imitation of Saxlehner's red and blue labels. The Matyas water was also put up in red and white labels of similar design. Suits were brought against them in 1886, in the circuit court of the United States, by the Apollinaris Company to enjoin the use of the name "Hunyadi" and of the labels. These suits were, however, withdrawn for want of jurisdiction, and two other cases, one against Andres and the other against Ungar, were brought by the Apollinaris Company in the supreme court of the state. E parte injunctions were issued in each case in February, 1887, and remained in force until July, 1888, when the injunction in the Ungar suit was dissolved upon application of the defendant, and soon thereafter the Andres suit was voluntarily discontinued. Saxlehner appeared to have had no knowl. edge of these suits, although an effort was made, which the court below found to have been unsuccessful, to show that he was notified of the motion to dissolve the injunetion, and refused to assist in opposing it. The defendants in these suits seem to have relied largely upon the fact that, under the laws of Hungary, as they then were, they had a right to make use of the word "Hunyadi,” provided they annexed thereto as a suffix a word different from "Janos," as, for instance, "Matyas" or "Arpad," and that, having ob tained permission by royal grant to make use of these names in Hungary, they were entitled to make use of the same names in other countries. In the meantime, however, and in 1887, Saxlehner instituted another suit in Hungary to enjoin the use of the name "Hunyadi" as applied to a water sold there called the "Hunyadi Josef." He was again unsuccessful, not only in preventing the use of the word "Hunyadi," but even in preventing the use of colorable imitations of his red and white label, apparently on account of the lack of efficient statutes upon the subject of trademarks. As one of the witnesses, Saxlehner's son, states, he was advised by his lawyer that before 1890 there was a statute which gave protection against so-called counterfeit or imitation labels and against literal imitations, but not imitations which were similar merely. In 1890, a statute was passed which gave but not to trademarks designated by name. a protection to pictorial trademarks only, Plaintiff, whose husband died in 1889, at once took advantage of this statute, and instituted suits against Mattoni & Wille, as well as a number of other infringers. In 1895, another act was passed giving protec tion to verbal trademarks. The suit against Mattoni & Wille resulted in an order of the minister of commerce, November 26, 1894, canceling the several trademarks of Hunyadi Matyas water, "because, according to 2 |