MOTION EOR REHEARING.
John Dowell, for the motion.— 1. That the words “ Microbe Killer" can bé taken as a trade mark and applied to medicine, we refer to the following authorities: Davis v. Kendal, 2 R. I., 566; Cox’s Manual of Trade Mark Cases, Nos. 103, 281, holding “pain killer” good, the word “killer" here passed on being one of the words of appellee. Smith v. Sixbury, Price & Stenart’s Am. Trade Mark Cases, 557, holding “ magnetic balm" good; Fulton v. Seller, 4 Brewster, 42, or Cox’s Manual of Trade Mark *542Cases, 279, holding “blood searcher” good; Funke v. Dreyfus, 34 La. Ann., 80, holding “ Backer’s stomach bitters” good; Reinhardt v. Spalding, 49 L. J. Ch., 28, W. R., holding “family salve” good; 6 Bear,-66, holding “medicated Mexican balm”good; 4 McLean, 516, holding “Chinese liniment” good; Caswell v. Davis, 58 N. Y., 223, holding ferro phosphorated “elixir of calasaya bark” good; Ex Parte Heyman, Price & Steuart’s Am. Trade Mark Cases, 361, holding “invigorator” good; Shepard & Co. v. Stuart & Peterson, Price & Steuart’s Am. Trade Mark Cases, 193, holding “ excelsior”good; Hier v. Abrahams, Price & Steuart’s Am. Trade Mark Cases, 438, holding “pride” good; Price & Steuart’s Am. Trade Mark Cases, 904, holding “ champion” good; Price & Steuart’s Am. Trade Mark Cases, 474, holding “satin polish” good; Browne on Trade Marks, secs. 216, 264, 274, 275.
All of the words sustained in the above authorities are common words, or ordinary words of the English language. The distinction is this: if an ordinary word is used to denote the effect of the invention, and not the quality or nature", they can be appropriated.
The words pain killer denote the effect or action of the medicine, invigorator likewise, also blood searcher, magnetic balm, and the like, and are good trade marks, while sulphuric acid would not be, as any person would be authorized to use the word sulphur to any medicine into which it entered as an ingredient.
2. It is insisted that the two words together were first used by appellee; and though each one separate may have been used before, yet he is the only one who applied them together'—designated their joint use; and such is new, novel, and valid. Words that are ordinary words when in use separately may become new and novel when used together, as in this case. Who ever used the words “microbe killer” jointly before appellee? Ho one. Newman v. Alvord, Cox’s Manual of Trade Mark Cases, case 282; Burnett v. Phalon, Cox’s Manual of Trade Mark Cases, case 277.
3. Words selected arbitrarily, not expressive of the quality or character of the article, and not previously appropriated by any other person to designate a similar commodity, may be used as a trade mark for such article. Price & Steuart’s Am. Trade Mark Cases, 1, 88, 559.
Mere words may become valid trade marks when they are merely arbitrary. Price & Steuart’s Am. Trade Mark Cases, 6, 79, 103, 485, 672, 674.
Were not appellee’s words “Mierobe Killer” declared by him arbitrarily to denote his medicine? They are not descriptive of the nature or quality of the medicine, and have nothing to do with it in their separate, ordinary use, and nothing to do with it in their joint use except as arbitrarily selected and affixed to it by appellee for his business purpose. These joint words are a valid and legal trade mark.
4. In determining whether or not there is imitation the court will look to the whole package as offered for sale—the jug, label, color of medi*543cine, and the whole general appearance; and the court in this case erred in looking solely to the label and deciding there was no imitation. Price & Steuart’s Am. Trade Mark Cases, 1, 2, 4, 12, 67-, 70, 16,1, 175, 1036, 1096.
5. The word “microbe” is a new word, only of late coinage. It is not in Worcester’s Unabridged Dictionary and' supplemental edition of 1886, and neither is it in Webster’s Unabridged Dictionary of 1890. I refer to these dictionaries to support me.
6. If the common words “ pain killer,” passed upon by two Supreme Courts (viz., 2 Rhode Island, 366; Canada West, Chan. Mowat, V. C. Cod. Dig., 236), and held tobe a fancy name indicative of the inventor’s article, then why not microbe killer? If pain killer are fanciful words so adjudged, then why are not “microbe killer?”
7. Labels may be quite different, yet if the general appearance of the whole thing when put up is the same, so that the public are deceived thereby, using ordinary care, then the imitation is complete. The Electro Silicon v. Levy, Price & Steuart’s Am. Trade Mark Cases, 370; Smith v. Sixbury, Price & Steuart’s Trade Mark Cases, 558, 559; Gillott v. Esterbrook, 48 N. Y., 374; Newman v. Alvord, 51 N. Y., 189; Hier v. Abrahams, 82 N. Y., 519; Ex Parte Heyman, Price & Steuart’s Am. Trade Mark Cases, 362, 363; O’Rourke v. Soap Co., Price & Steuart’s Trade Mark Cases, 1043; Burton v. Stratton, Price & Steuart’s Am. Trade Mark Cases, 673; 44 Mo., 168; Cox’s Manual of Trade Mark Cases, 669; Manfg. Co. v. Spear, 2 Sandf., 597; Canal Co. v. Clark, 13 Wall., 322; Falkingburg v. Lucy, 35 Cal., 52; Browne on Trade Marks, sec. 216; Durham Tobacco Case, 3 Hughes, 157; Witherspoon v. Currie, L. R., 5 E. & I. App., 508; Ford v. Foster, L. R., 7 Ct. App., 611; McAndrew v. Barrett, 10 Jur. (U. S.), 550; Lee v. Haley, L. R., 5 Oh., 155; Seixo v. Provezende, L. R., 1 Ch., 192; Broham v. Bustard, 1 Ham. & M., 447.
8. Appellee’s trade mark is indicative of origin and ownership. With the words Microbe Killer is used appellee’s own name, the whole being William Radam’s Microbe Killer.
Walton, Hill & Walton, for appellants, asked that the judgment be reformed so that the cause be remanded for trial upon appellants’ cross-bill.
STAYTON, Chief Justice.having been rendered in ac-
.—Judgment cordance with the opinion of the Commission of Appeals, both parties, in effect, ask that the judgment be so reformed as to remand the cause for further proceedings.
Appellants desire this to enable them to prosecute their cross-bill for damages; and appellee suggests that he may be able to offer further evidence on another trial tending to show that his right has been infringed, „ *544even if it be true that the words “Microbe Killer” may not constitute a trade mark.
Without in any respect qualifying the former opinion as to the law of the case, the former judgment will be set aside and a judgment here entered reversing the judgment of the court below and remanding the cause for further proceedings.
Reversed and remanded.
Delivered June 28, 1890.