capable of being deceived into buying the defendants' manufacture as G. H. Mumm & Co.'s "Extra Dry." If there were no such persons, the defendants never would have gone to the expense of dressing up their product as they do. But it is said that the defendants are guiltless because they have never stated anything but the truth in regard to their manufacture. The earnestness with which this ground of defense has been pressed upon the court justifies some further comment upon the character of the act of the defendants in dressing up their article as they do, What the defendants do is this: They make and put in the hands of other persons the means of fraud, knowing that these means can be, and probably will be, employed for the purpose of fraud and to the injury of the complainants. The defendants make and sell knowingly the tools of fraud, and they and the knaves who buy the tools of them, intending to use them for a fraudulent purpose, for which they were constructed, are co-conspirators, each guilty of the fraud perpetrated in pursuance of the intention with which the tools were made, and this although the particular person intended to be defrauded is not agreed upon between them. A person who knowingly sells counterfeit money of his manufacture to a person who buys it as counterfeit money with intent to utter it as true is found guilty of selling counterfeit money with intent to defraud. The use of "a token by which the party acquires a greater credit," "some token which may affect the public," "fraud which, in its nature, is calculated to deceive numbers," "selling goods with counterfeit marks," "placing a false mark upon a spurious article to pass it off as genuine," (Dr. Burns, Jus. of Peace, vol. 3, 271,) are the ingredients of crime at common law. Present as these ingredients are in this case, they show the defendants guilty of fraud when they make and sell a product dressed up in the manner described. There is no difference in point of evidence whether the case be a criminal or civil case; the same rules apply to both. (2 Russ. on Crimes, 354.) The defendants, when they make and sell an article dressed up, as it is, in a form calculated to deceive numbers into the belief that it is the champagne-wine manufactured and sold by the complainants under the name of "G. H. Mumm & Co., Extra Dry," could be convicted of misdemeanor at common law. Deceitful practices involving considerations of public trade, which defraud another of his known right by means of some artifice or device contrary to the plain rules of common honesty, are cheats punishable at common law. (2 Russ. on Crimes, 280.) The chief ingredients of the crime of forgery, which is a misdemeanor at common law, are fraud and an attempt to deceive by imposing upon the world that as the act of another to which he has never consented. (Ibid., 367.) Acts of this character are always unlawful, and when they cause special injury give the person injured a right of action and the right in a proper case to the protection of a court of equity. Since the argument of this case two recent decisions-one by the New York Court of Appeals (Fischer v. Blank) and the other (Coats v. Merrick Thread Co.) by the Supreme Court of the United States-have been brought to my attention by each of the parties to the controversy as supporting the contention in this case. I find in the decision of the New York Court of Appeals distinct support for a decision in favor of these complainants. In that case it was declared that although there could be no exclusive right to a name which indicates a characteristic quality of the article to which it is applied, such a name when used in connection with a particular form, style, color, and embellishment of the package that had been adopted by the plaintiff, and when the resemblance between the defendants' package and that of the plaintiff is such that there is danger that the one may be taken for the other to the detriment of the plaintiff and to the deception of the public, it is the province of equity to interfere for the protection of the purchasing public as well as the complainant and for the suppression of unfair and dishonest competition. Such is the case at bar. The defendants apply to a bottle of the form generally used for champagne-wine, and containing their product, the name "Extra Dry" in connection with the rose-colored cap adopted by the complainants in 1866, to designate their wine, and also in connection with the eagle with head erect and wings extended adopted by the complainants as their trade-mark, also in connection with the imperial mantle used by the complainants in their advertising, and which has been above described, and by applying these designating-marks in the way they do the defendants make their manufacture so to resemble the manufacture of the complainants, that one may be taken for the other, to the detriment of the complainants and the deception of the public. It is further to be observed that, although in the case decided by the New York Court of Appeals there was no testimony from witnesses that in the trade the defendants' manufacture had been taken for the other, the danger of such mistake was held sufficient to call for the interference of the court. See also Brahan v. Beachim, (7 Ch. Div., 856.) That case therefore overthrows the objection taken here, that there is no evidence of any instance where a person has been defrauded by the method adopted by the defendants in dressing up their manufacture. In a case like the present it would be too much to require the complainants to prove instances of such deception. It is not likely that the knave who perpetrates the fraud upon the ultimate consumer will disclose himself to the complainants, and the ultimate consumer, if cognizant of the frand practiced upon him, could not, unless by mere. accident, be known to the defendant. Such testimony is unnecessary where, as here, the proofs warrant the conclusion that the only reason for the dress adopted by the defendants for their product is that it can be successfully used to defraud the ultimate consumer. Moreover, it is not to be disputed that danger of injury to the complainants is created by the defendants' method of dressing up their article; and danger of injury is sufficient ground for the interposition of a court of equity. The other decision referred to is a recent decision of the Supreme Court of the United States in the case of Coats v. Merrick Thread Company. I find in this decision no support to the defendants' contention in this case. In the first place, I observe that in that case the question whether the resemblance between the designs upon the complainants' and the defendants' spools of thread was such as to indicate an unlawful intent was determined by comparison of the two designs. This disposes of defendants' contention here that the court cannot in this case find such a resemblance because no witnesses have been called to testify to that effect. In the next place the Supreme Court says: Irrespective of the technical question of trade-mark, the defendants have no right to dress their goods in such a way as to deceive an intending purchaser and induce him to believe he is buying those of the plaintiff. As this is just what these defendants do, the unlawfulness of their act is no longer open to question. The Supreme Court, in the case referred to, dismissed the bill upon the ground that intent on the part of the defendants to impose upon the public has been disproved by the defendants, and the dress of the goods adopted by the defendants bore so little resemblance to the dress adopted by the plaintiff that mistake could hardly be possible. In the case at bar an intention on the part of the defendants to impose upon the public by means of the dress in which they put up their manufac ture is found proved. A comparison of the two articles shows that imposition and injury to the complainants is a natural result of putting upon the market defendants' article dressed up as they dress it. There is also testimony that such would be the result from a witness, Mr. Chamberlain, whose competency to speak on such a matter cannot be denied. I have not overlooked the remark of the Supreme Court that the defendants were not bound to such a degree of care in avoiding resemblance between the dress of their thread and the dress of complainants' thread as might induce a careless person to accept one for the other; but this is said in reference to a case where intention to defraud was found to have been disproved, and where the Court was asked to decide that a manufacturer who has done nothing to enable his product to be put off as being the manufacture of another is responsible for the imposition upon the ultimate purchaser, accomplished solely by a false statement in regard to his manufacture made by the shopkeeper. I find nothing in this to prevent the complainants from receiving protection in the present case, where the means of accomplishing the imposition are furnished by the manufacturers and are sold with knowledge that they are bought because they are capable of deceiving the ultimate purchaser. In such a case it is no answer to say that the ulti mate purchaser was ignorant or unwary. As I understand it, the law is intended for the protection of the ignorant, the weak, and the unwary. The sharp and the shrewd take care of themselves without aid from the courts. The defendants dress up their article in the way they do with the distinct purpose of enabling the weak, the ignorant, and the careless to be defrauded thereby, and when their purpose is accomplished I discern no just ground upon which to except them from responsibility. At common law it is not necessary that the false token used should be such that ordinary care and common prudence were not sufficient to guard against the deception. (People v. Haines, 14, Wend., 557.) It is said by Lord Mansfield that— frauds by means of false tokens cannot be guarded against by common care and prudence. (Rex v. Wheally, 2 Burrows, 1139.) The injury to the complainants and to the public is the same when, by the means provided by the defendants, a bottle of the defendants' manufacture is put off as the wine of the complainants, whether the purchaser be wise or ignorant, careful or careless. Upon these grounds my decision is that the complainants have shown the defendants guilty of unfair competition in dressing up their article of their manufacture in the manner described, and are entitled to an accounting accompanied by an injunction. As to the extent of the prohibition to be awarded, I am of the opinion that the defendants should be prohibited (1) from dressing up their product in the manner heretofore employed by them, or from using, in combination, the marks, labels, and capsules described. (2) They must also be forbidden to use upon any bottles of the product colorable imitations of the complainants' trade-mark which they have hitherto placed upon their bottles, or any similar imitation thereof. (3) They should also be prohibited from placing the words "Extra Dry" upon any bottles of their product of the character that has been described, either in combination or otherwise; this upon the ground that the words "Extra Dry" as applied by them to the article they manufacture constitute an untrue and deceptive representation, made, not for the purpose of description, but for the purpose of fraud, and which are calculated to deceive, to the injury of the complainants. (4) They must also, upon the same grounds, be prohibited from surrounding the neck and cork of a bottle of the form generally used to contain champagne-wine, which contains their prod uct as herein described, a rose-colored capsule of metal, whether stamped with the words "Extra Dry" and an imitation of the complainants' trade-mark, as in the exhibit before the court, or otherwise. The rose color in question may doubtless be lawfully used in other ways than in the way indicated; but the use which the defendants make of the rose color in connection with a metal capsule upon bottles of the form usually employed to contain champagne-wine, which contain their product, is accompanied with a fraudulent intent, and when so used constitutes an untrue and deceptive representation which may well be forbidden by a court of equity. No injury to the defendants can follow such a prohibition as I have decided. The public will be protected thereby from fraud, and the complainants relieved from danger of injury. If any doubt can be fairly entertained as to defendants' purpose in using a rose-colored capsule in the way they do, as was said by Judge Wallace in Anheuser v. Piza, (24 Fed. Rep., 151)— it is not unreasonable to resolve any doubt that may remain in favor of the complainants. Let a decree be entered in conformity with this opinion. [Court of Appeals of the District of Columbia.] COFFEE et al. v. GUÉRRANT. Decided June 15, 1894. 68 O. G., 279. 1. INTERFERENCE-PRIORITY OF INVENTION-PERfected MacHINE. Where G was the first to conceive and the first to reduce to operation, although the machine was far from perfect and never operated continuously for work in a commercial sense, Held, that such machine was something more than an unsuccessful experiment-that it was a reasonably successful reduction to practice. 2. SAME-SAME-WHAT IS NOT AN ABANDONED EXPERIMENT. Where from the date of the first application until the date of the application for the invention in its final form the machine on which both applications were based was preserved and in use, either partly or wholly dismantled or entirely assembled for the purpose of obtaining a patent, and with a view to its mechanical perfection for actual commercial use, Held, that such machine does not present the case of a dismantled and abandoned experiment recalled to memory by the successful effort of a later inventor. APPEAL from the Commissioner of Patents. Messrs. Church & Church for complainants. SHEPARD, J.: This cause came on to be heard on the transcript of record from the Commissioner of Patents and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this Court that the decision of the said Commissioner of Patents in this cause be, and the same is hereby, affirmed, with costs. This is an appeal from a decision of the Commissioner of Patents in an interference proceeding. We do not pass upon the motion to dismiss the appeal, as the question is of no practical importance and is not necessary to be decided in our view of the case. On October 19, 1883, John C. Guerrant filed an application for patent for a tobacco-stemming machine. He died in March, 1884, and his application became abandoned, under the law for such cases, for failure of prosecution. His widow, Mary L. Guerrant, having qualified as administratrix of his estate, revived the application, which again |
