There are cases in which a court of chancery refuses to protect a trade-mark because it is an imposition on the public. The defendants contend that this is a case of that kind. I think, however, there is little reason to doubt that purchasers who are looking for Stillman Co.'s linseys get what they are looking for when they get the linseys manufactured by the plaintiffs. The firm of Stillman Co. has ceased to exist, and, consequently, Stillman Co.'s linseys, manufactured by Stillman Co., can no longer be procured; but the plaintiffs are their successors, by purchase, in the use of their firm name, and continue the same manufacture with improvement, and, therefore, I am reluctant to hold, that a continuance of the old name upon their labels is intrinsically any fraud upon *Page 409 the public, who are interested to get the same or a better manufacture, but who, so long as they do get it, can have little care whether it comes from the original manufacturers or their successors. And see Eddleston v. Vick, 18 Jur. 7; Cox Amer. Trade-mark Cas. 666; Fulton v. Sellers Co. 4 Brews. 42;Dale v. Smithson, 12 Ab. Pr. 237; Cox Amer. Trade-mark Cas. 282; Dixon Crucible Co. v. Guggenheim, 2 Brews. 321; Cox Amer. Trade-mark Cas. 559.
There is a defence, which, to my mind, seems more meritorious. If the firm of Stillman Co. was still in existence, and was the plaintiff in this suit, I should find it difficult to protect it by an injunction. The trouble is, the label of the defendants does not resemble the label of the plaintiffs closely enough to deceive any person of ordinary discernment, unless the name "Stillman," which is prominent in both labels, may mislead him. The plaintiffs, therefore, can have no relief unless they can show that the defendants have no right to use that name as they do use it in their labels. How can the plaintiffs do this when this surname of one of the defendants is Stillman, and when the mill where the linseys are manufactured, though it may be popularly known as the "Seventh Day Mill," is also properly called the "Stillman Mill?" A manufacturer has a right to attach his own name to his manufactures, even though a rival manufacturer of the same name, who has given it prestige in the market, may suffer in consequence. The resulting damage isdamnum absque injuria. This doctrine was recognized in Croft v. Day, 7 Beav. 84; Holloway v. Holloway, 13 Beav. 209;Burgess v. Burgess, 17 Jur. 292, where, however, injunctions were granted because the names were coupled with simulativeindicia; and in Faber v. Faber, 49 Barb. S.C. 357. See alsoClark v. Clark, 25 Barb. S.C. 76; Rogers v. Taintor,97 Mass. 291, where it was strongly asserted.
And if a manufacturer has the right to label the products of his mill with his name, I do not see why he has not an equal right to label them with the name of that mill itself, provided the name is not unfairly assumed for that purpose, or fraudulently employed. Newman et al. v. Alvord Bailey, 49 Barb. S.C. 588; Glendon Iron Co. v. Uhler Fulmer, 75 Pa. St. 467; Brooklyn White Lead Co. v. Masury, 25 Barb. S.C. 416, Condee v. *Page 410 Deere, 10 Amer. Law. Reg. N.S. 694; Canal Co. v. Clark, 13 Wall. 311. In the last named case the Supreme Court of the United States said, "Equity will not enjoin against telling the truth."
The plaintiffs have submitted testimony to show that the defendants, in calling their mill the "Stillman Mill," are not telling the truth. I am not satisfied of this. The defendants, perhaps, are not unwilling to profit by the reputation which the plaintiffs have acquired for the name; but I do not find that they are practising any such fraud to that end as entitles the plaintiffs to an injunction. The testimony shows that the mill has been popularly known as "The Seventh Day Mill," but it appears that that name is a kind of nickname, given to it because its owners have been Sabbatarians. Naturally the defendants would not care to put their goods upon the market under such a name. The defendants also show, by their testimony, that the mill has long been known to certain persons as the "Stillman Mill," and that a portion of its products, before even it came into the hands of the defendants, was sold with labels or tickets attached bearing that name. Moreover, I do not find any proof of a fraudulent imitation of the plaintiffs' label. The words, "Stillman Mill," are not on that label. The resemblances are general, and may have occurred without improper design; and that they did so occur is inferrible from the testimony of the engraver, who says he knew nothing of the plaintiffs' label. Indeed, if the plaintiffs have suffered from the competition of the defendants, I am inclined to think they have suffered rather because the linseys made by the defendants are considerably cheaper than those made by the plaintiffs, while closely resembling them, than because of any similarity in their respective labels. Against the losses incident to such a competition the court, of course, cannot protect. I therefore concur in the decision against granting the injunction.
Injunction refused.